Citation Nr: 1808348 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 10-20 108 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for residuals of a broken tailbone. 2. Entitlement to service connection for a low back disability, to include as secondary to service-connected disabilities. 3. Entitlement to service connection for a gastrointestinal disability, claimed as fecal incontinence, to include as secondary to service-connected disabilities. 4. Entitlement to an initial compensable evaluation for residuals of a pelvic fracture. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from March 1990 to October 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified before the Board at a September 2017 hearing conducted via videoconference. A transcript of the hearing is of record. The issues of service connection for low back and gastrointestinal disabilities, as well as an increased initial evaluation for residuals of a broken tailbone are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran has not been diagnosed with residuals of a broken tailbone at any point after service, or during the appeal period. A broken tailbone has not been clinically demonstrated at any time. CONCLUSION OF LAW The criteria for service connection for residuals of a broken tailbone have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it 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. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran has been provided notice letters throughout the appeal that address all notice elements required. All pertinent treatment records identified by the Veteran have been obtained, and VA examinations have been provided where warranted. There has been no allegation of errors with the duties to notify and/or assist in the instant case. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009); see also Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the Veteran fails to raise them before the Board); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran seeks service connection for residuals of a broken tailbone. Specifically, he asserts that he was told by doctors that his tailbone had been "split" following a motor vehicle accident during service. Significantly however, while the in-service motor vehicle accident and subsequent medical treatment is well-documented within the claims file, the competent medical evidence of record, which includes radiological testing, indicates no pathology to support a medical diagnosis of residuals of a broken tailbone. (He did have pelvic fractures that are otherwise service connected.) The Board acknowledges the Veteran's complaints of pain in the coccyx area, and that he is competent to report such symptomatology. However, pain is not, in and of itself, a disability for the purposes of service connection. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (holding that 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), appeal dismissed, 259 F.3d 1356 (Fed. Cir. 2001). The Veteran is not shown to have the medical expertise required to competently diagnose himself with a chronic disability. See Davidson v. Shinseki, 581 F.3d 1313 (2009). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (a "current disability" exists if the diagnosed disability is present at the time of the claim or during the pendency of that claim). Absent a diagnosis of chronic residuals of a broken tailbone at any point during the appeal period, the preponderance of the evidence weighs against the Veteran's claim, and the benefit-of-the-doubt rule does not apply. Service connection for residuals of a broken tailbone must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. ORDER Service connection for residuals of a broken tailbone is denied. REMAND The Veteran asserts entitlement to service connection for a low back disability and gastrointestinal disability, claimed as fecal incontinence, both as due to the in-service motor vehicle accident. Specifically, he asserts he has suffered from symptoms of severe low back pain and abdominal pain and fecal incontinence during bowel movements since his in-service injuries. With respect to a low back disability, the record contains multiple negative etiological opinions rendered by VA examiners, based primarily on a lack of findings of a low back condition in service and a significant period of time between the Veteran's separation from service and the first evidence of post-service treatment for a low back condition. However, these opinions do not take into account the Veteran's statements that he experienced low back pain throughout this time. Further, the Veteran submitted a July 2017 VA primary care note in which is attending physician diagnosed multilevel lumbar stenoses that are likely related to his accident in service due to his young age. However, while this statement provides a positive opinion regarding lumbar stenoses, it is not clear whether the Veteran's physician reviewed the record in conjunction with this opinion. As such, the Board believes a new VA examination would be beneficial to reconcile the conflicting medical evidence of record. With respect to a gastrointestinal disability, the Veteran reports pain and fecal incontinence during bowel movements. An April 2016 VA examination notes a diagnosis of subjective fecal incontinence. However, no physical examination was conducted at the time, and the VA examiner specifically noted that the Veteran has not had a gastrointestinal or proctology evaluation for fecal incontinence. Therefore, as the record is unclear regarding whether there is objective evidence of a chronic disability resulting in fecal incontinence, a new VA examination, including a physical evaluation of the Veteran, is required. Concerning the increased rating issue, as the Veteran has not been provided a VA examination to address the manifestations and severity of his pelvic fracture residuals since July 2008, on remand, such an examination should be conducted. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records. Efforts to obtain these records must be associated with the claims file and requests for these records must continue until the AOJ determines that the records sought do not exist or that further efforts to obtain those records would be futile. It is noted that multiple examinations are requested below. It may be that one examiner may be able to do more than one of the examinations. That the matters are set out in separate paragraphs does not mean that separate examinations are needed where it is medically feasible for a single examiner to address one or more of the requests below. 2. Schedule the Veteran for a VA examination to address the nature and etiology of his claimed low back disability. A complete copy of the claims file must be provided to the examiner for review, and the examination report should reflect such a review was accomplished. Any clinically indicated testing and/or consultation must be performed. Following a physical examination of the Veteran and review of the claims file, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current low back disability had its onset or is otherwise etiologically related to his period of active service or a service connected disorder, including the pelvic fracture (caused by or aggravated by the pelvic fracture). In offering this opinion, the examiner must address the Veteran's assertions that his low back was injured in the June 1991 motor vehicle accident and he has experienced low back pain since. The examiner must also address the July 2017 VA progress note indicating the Veteran has been diagnosed with multilevel lumbar stenoses that are likely related to the in-service motor vehicle accident, as well as the other negative opinions on file. A complete rationale must be provided, including a discussion of the evidence of record and medical principles which led to the conclusion reached. 3. Schedule the Veteran for a VA examination to address the nature and etiology of his claimed gastrointestinal disability, claimed as fecal incontinence. A complete copy of the claims file must be provided to the examiner for review, and the examination report should reflect such a review was accomplished. Any clinically indicated testing and/or consultation must be performed. Following a physical examination of the Veteran and review of the claims file, the examiner should address the following: a. Has the Veteran been diagnosed with a gastrointestinal disability resulting in fecal incontinence at any point during the appeal period, dating from March 2008 to the present? If so, please state the diagnosis. b. For each such diagnosis, opine as to whether it is at least as likely as not (probability of at least 50 percent) that the diagnosed disability had its onset or is otherwise etiologically related to the Veteran's period of active service. In offering this opinion, the examiner must specifically comment on the Veteran's assertions that he has suffered from fecal incontinence since the June 1991 motor vehicle accident. c. If (b) is answered in the negative, opine as to whether it is at least as likely as not (probability of at least 50 percent) that the diagnosed disability is either proximately due to (caused by) or aggravated (chronically worsened beyond normal progression) by his service-connected residuals of a pelvic fracture. A complete rationale must be provided, including a discussion of the evidence of record and medical principles which led to the conclusion reached. 4. Schedule the Veteran for a VA examination to determine the current nature and severity of his residuals of a pelvic fracture. A complete copy of the claims file must be provided to the examiner for review, and the examination report should reflect such a review was accomplished. Any clinically indicated testing and/or consultation must be performed. Following a physical examination of the Veteran and review of the claims file, the examiner should describe in detail all symptomatology associated with the Veteran's residuals of a pelvic fracture, including any functional impairment. The examiner must discuss whether the Veteran's residuals of a pelvic fracture results in limitation of motion of any affected joint and/or fecal incontinence. A complete rationale must be provided, including a discussion of the evidence of record and medical principles which led to the conclusion reached. 5. The AOJ must ensure that the examiners' reports comply with this remand and answers the questions presented in the requests. The AOJ must also ensure that the examiners document consideration of the electronic claims file, including any records contained in Virtual VA and VBMS. If the report is insufficient, the AOJ must return it to the examiner for necessary corrective action. 6. After completing the above, and any other development deemed necessary, readjudicate the Veteran's appeal based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs