Citation Nr: 1134072 Decision Date: 09/12/11 Archive Date: 09/22/11 DOCKET NO. 05-12 140 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a pelvic disorder, claimed as pelvic pain. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from October 2002 to August 2003. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In that decision, the RO, in part, denied entitlement to service connection for pelvic pain. The Veteran has subsequently moved to the jurisdiction of the VA RO in St. Petersburg, Florida. In June 2009, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of her testimony is associated with the claims file. The case was subsequently remanded to the RO by the Board in August 2009 for additional development and adjudicative action. FINDINGS OF FACT 1. The Veteran did not have foreign service. 2. The Veteran's pelvic pain has not been attributed to any known clinical diagnosis. 3. The Veteran did not report to scheduled examinations without good cause in conjunction with her claim of service connection. CONCLUSION OF LAW The criteria for the establishment of service connection for a pelvic disorder are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.655 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated September 2003. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a service connection claim, and the relative duties of VA and the claimant to obtain evidence. In a subsequent letter, sent to the Veteran in July 2006, the Veteran was provided additional notice regarding what evidence was necessary to substantiate her claims, in addition to notice about how VA assigns initial disability ratings and effective dates for any grant of service connection. The July 2006 notice letter was followed with an October 2007 Supplemental Statement of the Case (SSOC), which readjudicated the claim. The notice errors in this case did not affect the essential fairness of the adjudication because VA cured the procedural defects and has obtained all relevant evidence. The notices provided to the Veteran over the course of the appeal provided all information necessary for a reasonable person to understand what evidence and/or information was necessary to substantiate her claim. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of her claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, obtained medical opinions as to the etiology and severity of disabilities, and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The case was remanded back to the RO after the Veteran's video conference in August 2009 for additional development of the record. In particular, the remand directed the RO to schedule the Veteran for a VA examination to determine the current nature and likely etiology of her pelvic pain. In an October 2009 letter to the Veteran, sent to her last address of record on W. Drive in Florida, she was advised that an examination would be scheduled on her behalf in conjunction with her claim for benefits. The record reflects that the Veteran failed to report to that examination, and she did not provide good cause for her failure to report. The RO sent additional correspondence to the Veteran in December 2009, noting her failure to report to the examination. In February 2010, the RO sent another letter to the Veteran, to a different address on I.O. Lane, in Florida, advising her that she would be scheduled for an VA examination in conjunction with her appeal. The examination request, however, was sent to the W. Drive address, and not the address on I.O. Lane. The Veteran failed to report to the examination that was scheduled for March 2010. A June 2010 report of contact notes that the Veteran's phone number had been disconnected with no forwarding number provided. Subsequent to the above failure to report, a note in the file revealed that a review on CAPRI showed a newly reported address in Florida, on [redacted]. As such, correspondence was sent to her in August 2010 once again notifying her that a VA examination would be scheduled on her behalf in conjunction with her claim of service connection. The examination request was subsequently sent to an address on [redacted], in Florida, and, in any event, the Veteran presented for the examination in September 2010. Unfortunately, the examination only covered the bones, and was not a gynecological examination; thus, the examination was not adequate and had to be rescheduled. In a letter to the Veteran, sent to the [redacted] address, the RO noted that the Veteran was examined in September 2010, but x-rays of the pelvis were not taken; thus, the Veteran would be rescheduled for another examination to include x-rays. In October 2010, notice of the scheduled examination was sent to the [redacted], address and the Veteran's mother's address in North Carolina. Likewise, a letter was sent to the Veteran at the [redacted] address in October 2010 notifying her of the need for another examination to obtain x-rays. A note in the file reflects that the Veteran failed to report for x-rays scheduled for November 2010. In May 2011, another letter was sent to the Veteran at the [redacted] address letting her know that another examination would be scheduled on her behalf. The Veteran once again failed to report for the examination. In a note to the file, it was indicated that the Veteran's address of record on [redacted], differed from the VHA database address in North Carolina. An RO representative clarified that the North Caroling address was that of the Veteran's mother (Veteran's next of kin). In a June 2011 note to the file, an RO representative explained that the Veteran had been scheduled for 4 separate examinations in Orlando to have x-rays completed; yet, she failed to report each time. The Veteran then visited the Salisbury VAMC in North Carolina in June, but did not provide a new address or phone number for CAPRI. The RO representative then indicated that he attempted to contact the Veteran at the last reported phone number, but it was disconnected. Then, he attempted to contact the Veteran via her next of kin, her mother, but her mother's phone number was no longer in service. Finally, the RO representative indicated that no new address or phone number was found for the Veteran. In light of the foregoing, the RO determined that all efforts to locate the Veteran had been exhausted, and any additional attempts to schedule additional VA examinations would be futile. The RO then issued a supplemental statement of the case, which was also returned as undeliverable. In sum, the RO has made numerous attempts to locate this Veteran to notify her of her responsibility to appear for a VA examination. Her current address of record is not known, and the RO has made all reasonable efforts to contact her and her next of kin. The law provides that while VA is obligated to assist a claimant in the development of a claim, there is no duty on VA to prove the claim. As the Court stated in Wood v. Derwinski, "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." 1 Vet. App. 190, 193, reconsidered, 1 Vet. App. 406 (1991); see also Wamhoff v. Brown, 8 Vet. App. 517 (1996). Moreover, the Veteran, alone, is responsible to keep the RO informed of her current address, and to report any change of address in a timely manner. If she does not do so, "there is no burden on the part of the VA to turn up heaven and earth to find her." See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Service Connection The Veteran seeks service connection for a pelvic disorder. She asserts that she has experienced pelvic pain since service. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran reported that she had no problems with pelvic pain prior to service. At her personal hearing in June 2009, she testified that during service, she worked as a waitress, and would stand for long periods of time in cold weather, and then started noticing pain in her pelvic area. The pains were sharp. The Veteran also reported changes in her menstrual cycle that began during service, with her cycles becoming longer and heavier. Service treatment records are negative for complaints or treatment for pelvic pain, including joint pain in the pelvic area, and a gynecological disorder. A November 2003 VA examination noted a normal gynecological examination. The examiner noted an essentially unremarkable genealogical history and regular menstrual cycles with normal periods. The examiner also noted no history of pelvic infections. The examiner noted that the Veteran was recently hospitalized for a broken leg, and had developed pain in the left leg which radiated into her pelvis. The examiner further noted that the pelvic pain persisted beginning at the left iliac crest and radiated around the pelvis and into her lower back. It was not affected by her menstrual cycle. According to the examiner, a June 2003 pap smear was negative. On examination, there was some tenderness to palpation over the left iliac crest and along the pubic symphysis. A November 2003 general medical examination noted diagnoses of status postoperative open reduction, fracture of the right ankle (tibia and fibula); history of a fall with pain in the left leg; normal examination; and, history of right knee pain. Normal examination. VA outpatient treatment records show that the Veteran continued to complain of pain in the left leg that radiated up into the groin. An October 2005 note, for example, shows that the Veteran reported sharp pain the anterior left groin, that may occur suddenly, and on a daily basis. The pain was described as a "pin" pain, and could occur with or without movement. There was no obvious leg weakness and no foot swelling. The examiner noted that the left groin pain had an unclear etiology, as there was nothing obviously emergent that he could elucidate. At a VA outpatient genealogical examination in February 2006, the Veteran continued to report groin pain. The note indicates that it was her first visit to the women's well clinic. The Veteran had a consult scheduled for October 2005, but was a no-show and was also a no-show for a consult made in January 2005. The Veteran reported left groin pain that hurt all the time. Nothing made it worse, and lying down helped reduce the pain. Gynecological examination was essentially unremarkable and the examiner specifically indicated that there was no gynecological reason for the Veteran's left groin pain. There was no sign of hernia and a musculoskeletal etiology was to be ruled out. At a June 2006 VA joints examination, the Veteran reported some pelvic discomfort in conjunction with the examination of hip. There was no complaint of right hip pain; and, because there was no right hip tenderness at the trochanteric or femoral head area, there was no hip joint evaluation. At a June 2006 VA genealogical examination, a history of pelvic pain not of GYN etiology was again noted, and the diagnosis was normal GYN examination. The examination report notes the Veteran's reports of developing left-sided pelvic pain subsequent to leg fracture. Ultrasound examination was negative and March 2006 pap smear was also negative, according to the examination report. A March 2007 VA outpatient annual genealogical visit was essentially negative. Interestingly, in a November 2007 rating decision, the RO granted service connection for left lower leg strain. The RO explained that the disability was not specifically listed in the rating scheduled, but that the disability would be rated by analogy to a muscle disability based on closely related anatomical localization and symptoms. In particular, the disability was based on the Veteran's complaints of pain from the left leg up to the hip and having to put all the weight on the left side of her body for support since she fractured her right tibia and fibula. The Board notes that she is also service-connected for status post right knee strain, and status postoperative open reduction of the right ankle (tibia and fibula). As noted previously, the Veteran testified in June 2009 that she continued to have pelvic pain. Given that no etiology of the pelvic pain had been provided thus far, the matter was remanded in August 2009 for additional development of the record. Additional VA outpatient records were obtained, and included a June 2008 annual gynecological examination report, a July 2009 consult, and an August 2009 pelvic echogram. The June 2008 annual report was essentially negative with respect to complaints of pelvic pain, although lab reports from this time period appear to show that the Veteran tested positive for gonorrhea. No medical professional attributed the Veteran's pelvic pain to any positive diagnosis of gonorrhea. A July 2009 VA gynecological clinic note indicates that the Veteran presented with heavy bleeding during periods. She reported that she got her period every 14 days over the prior year and they lasted 7 days with heavy flow soaking 6 pads per day. The examiner noted, however, that she saw another doctor in May 2009 and June 2009 and made no mention of that bleeding problem. Also, the examiner noted that the Veteran complained of 5 minutes of throbbing pain either in the right lower quadrant or the left lower quadrant or the perivaginal area about once per week. Examination was normal. The assessment was menometrorhagia on BCP; however, the examiner also noted that clinically, it would seem unlikely that the Veteran would lose as much blood as she claims. A pelvic ultrasound was ordered. The pelvic ultrasound, conducted in August 2009, noted that there was a small amount of fluid in the posterior cul-de-sac which should be clinically correlated. Otherwise, the test was normal for the Veteran's age. In September 2010, the Veteran appeared for a VA joints examination. The Veteran's complaints of pelvic pain were noted, but the examination was normal. There was no diagnosis with respect to the pelvic pain and no likely etiology was provided. However, because there were no x-rays taken in conjunction with the examination report, the RO determined that the examination was inadequate and attempted to schedule another examination. As noted above, several attempts were made to contact the Veteran and schedule her examination and x-rays, and she did not report to any of the scheduled examinations. Additionally, the SSOC was returned as undeliverable. The RO attempted to contact her next-of-kin, and that number had also been disconnected. In sum, the RO made every effort to assist the Veteran with the development of this claim; to find the current nature and likely etiology of any pelvic pain, but the Veteran did not cooperate. The question remains unresolved, but without the Veteran's cooperation, service connection may not be granted for pelvic pain. Although the Veteran is certainly competent to report that she has pelvic pain that began during service, she does not possess the requisite medical expertise to be able to diagnose a medical condition which is manifested by that pain. And, more importantly, pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez- Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Furthermore, her statements regarding the onset, duration, and severity of the pelvic pain are not necessarily credible. Throughout the record, medical professionals have questioned her reports of symptoms, noting inconsistencies in the record with regard to her symptoms. As noted above, the VA doctor who treated the Veteran for complaints of heavy bleeding specifically noted in the record that the Veteran's reports were not consistent with physical findings or with past recorded findings. Most importantly, however, is that no medical professional has provided a diagnosis of any disability to account for the Veteran's pelvic pain, either gynecologically or orthopedically. Nevertheless, service connection was granted for left leg pain, which could be considered to include the pelvic/groin pain, given that there is no diagnosis for this pain. Significantly, absent proof of the existence of the disability being claimed, there can be no valid claim. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmitech v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In this case, there is no medical evidence establishing a current disorder for which service connection may be established with respect to pelvic pain. Thus, the preponderance of the evidence is against a finding service connection and the claim must be denied. As noted above, the Veteran was scheduled for several examinations to which she did not appear, and failed to provide any reason for such failure to report. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim without good cause, the claim shall be rated based on the evidence of record. Examples of good cause include, but are not limited to, illness of the Veteran, or illness or death of a family member. 38 C.F.R. § 3.655(a),(b). Since the Veteran failed to appear to her scheduled examinations as noted above, without offering any explanation for her failure to cooperate, the regulations dictate that her claim of service connection must be based on the record as it stands, which does not support a grant of service connection. See 38 C.F.R. § 3.655. As the preponderance of the evidence is against the claim of service connection for pelvic pain, the benefit-of-the- doubt doctrine is not applicable. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Service connection for a pelvic disorder is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs