Citation NR: 9718683 Decision Date: 05/30/97 Archive Date: 06/04/97 DOCKET NO. 95-29 898 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating for the service- connected postoperative residuals of a gall bladder removal, currently rated as 10 percent disabling. 2. Entitlement to service connection for gastroesophageal reflux disease, secondary to the service-connected postoperative residuals of a gall bladder removal. 3. Entitlement to service connection for a claimed hip disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Roberto D. DiBella, Associate Counsel INTRODUCTION The veteran had active duty from October 1986 to November 1989, and from May 1990 to May 1991. In a decision of March 1995, the RO granted service connection and assigned a 10 percent rating for status post gall bladder removal with bile acid induced diarrhea, effective on September 7, 1994, and denied service connection for gastroesophageal reflux disease and a disability manifested by hip pain. In it’s Informal Brief presentation, the veteran’s representative raised additional matters, including that of entitlement to service connection for hallux valgus. These other matters have not been developed for appellate review and are referred back to the RO for any indicated action. (The issues of entitlement to an increased rating for the service-connected postoperative residuals of a gall bladder removal, and entitlement to service connection for gastroesophageal reflux disease, secondary to the service- connected postoperative residuals of a gall bladder removal will be the subject of the remand portion of this document.) CONTENTIONS OF APPELLANT ON APPEAL The veteran claims that she currently has a bilateral hip condition which first manifested itself during boot camp in service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence is insufficient to justify a belief by a fair and impartial individual that the veteran has presented a well-grounded claim of service connection for a bilateral hip disorder. FINDINGS OF FACT 1. The veteran is shown to have complained of hip problems on two occasions within a one week period while in service; however, no further complaints or treatment referable to a hip condition were noted until approximately 4 years after service in 1995 when she was diagnosed with bilateral hip pain with no objective pathological findings. 2. No competent evidence has been submitted to show that the veteran currently has a hip disability manifested by pain due to disease or injury which was incurred in or aggravated by service. CONCLUSION OF LAW A well-grounded claim of service connection for a hip disorder has not been presented. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107, 7104 (West 1991 & Supp. 1996); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Historical The service medical records do show that on November 9, 1986, the veteran had complained of pain in the left hip for the previous two days. The physical examination of the extremities revealed full range of motion and no pain or inflammation. On November 14, 1986, the veteran related a history of left hip pain associated only with marching. The diagnosis was that of normal hip examination with possible myalgia. In an August 1989 separation examination, the veteran related that she was in excellent health with no complaints referable to the hip, and the physical examination of the lower extremities, spine, and other musculoskeletal areas was within normal limits. In an October 1989 separation/reserve examination, the veteran related that she was in good health with no complaints referable to the hip, and the physical examination of the lower extremities, spine, and other musculoskeletal areas were within normal limits. In a September 1990 separation physical examination, the veteran related that she was not having any medical problems currently, and the physical examination of the lower extremities, spine, and other musculoskeletal areas was within normal limits. In a July 1992 annual reserve examination, the veteran related that she was in good medical condition with no complaints referable to the hip, and the physical examination of the lower extremities, spine, and other musculoskeletal areas was within normal limits, with no defects being noted. In a January 1995 VA examination, the veteran’s pertinent complaints included that of problems with her hips, mainly her right hip. She further related that if she would stand for a very long period of time, her hips would ache and lock up. The examiner also noted a history of bilateral hip pain after prolonged standing or walking since 1986. She had had no x-ray studies for her hip pain, and there was no limitation of motion in either hip. The physical examination of musculoskeletal system was normal, and x-ray studies of the hips revealed no significant pathological findings. The pertinent diagnosis was that of bilateral hip pain with normal exam and no limitation of motion; x-ray studies showing no abnormalities. In a November 1994 letter to the veteran, the RO requested her to provide evidence which showed that her claimed disabilities had been treated since her discharge from service. In a statement from the veteran, received in November 1994, she reported that she had not seen a civilian doctor since having left the military. In her Substantive Appeal, received in August 1995, the veteran reported that, while in boot camp, she had been seen by a doctor for pain in her right hip and that she had continued to have pain in her hip whenever she would be on her feet for long periods of time or had done a lot of walking. In an April 1996 statement, the veteran reported that she had no other medical information to send in support of her case. She further reported that she had not been treated by a doctor for her right hip pain. II. Analysis In general, service connection may be granted for a disability shown to be due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 1996). However, before the veteran's claim can be addressed, he must first present evidence sufficient to justify a belief by a fair and impartial individual that the service connection claim is well- grounded. See 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1996). The United States Court of Veterans Appeals (Court) has held that the veteran must submit evidence of a well- grounded claim, one that is plausible or meritorious. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). If the veteran has not met that burden, there is no further duty on the part of the VA to assist the veteran with the development of that claim. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1996). See also Boeck v. Brown, 6 Vet.App. 14, 17 (1993) and Grivois v. Brown, 6 Vet.App 136, 140 (1994). When, as in this case, the issue involves a medical question of diagnosis or causation, competent, medical evidence is required. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Statements and testimony from lay witnesses or the veteran in this regard are not sufficient to establish a plausible claim as they are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Moreover, the evidence must show that the veteran currently has a disability stemming from service. Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992). Therefore, in order to have a well-grounded claim, the veteran must submit competent medical evidence of a current medical disability; competent lay or medical evidence of an incurrence or aggravation of a disease or injury in service; and, competent medical evidence of a nexus between an inservice injury or disease and a current disability. Caluza v. Brown, 7 Vet.App. 498, 506 (1995). The crucial determination before the Board in regards to this issue is whether the veteran currently has a disability manifested by hip pain due to disease or injury which was incurred in or aggravated by service. While the veteran complained of hip pain on two occasions shortly after having entered service, the service medical records do not show any objective findings of actual hip disability. The physical examinations revealed no objective findings with the exception of possible myalgia; however, this diagnosis was never confirmed. Furthermore, physical examinations of the lower extremities, spine, and other musculoskeletal areas, conducted in August 1989, October 1989, September 1990, and July 1992, were noted to have been within normal limits. Finally, the veteran related on numerous occasions during this time period that she was in good medical condition as no complaints referable to the hip were noted. The next recorded clinical entry referable to hip pain was in 1995, approximately 4 years after service, when the examiner did not provide any medical opinion as to the etiology, other than repeating the history of bilateral hip pain after prolonged standing or walking since 1986, as provided by the veteran herself. However, information which is simply recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute competent medical evidence in establishing the nexus requirement for a well-grounded claim. LeShore v. Brown, 8 Vet.App. 406, 409 (1995). In addition, it pertinent to note that the recent VA examination did not note any objective findings as the hip examination was normal with no abnormalities shown in x-ray studies. In fact, the veteran has not submitted any medical records in the four years since leaving service which establishes a link between any current hip complaints and her military service. Anderson v. Brown, 9 Vet.App. 542, 545 (1996). Thus, no competent medical evidence has been presented to show that she has a current hip disability due to disease or injury which was incurred in or aggravated by service. Although the veteran has offered an opinion that her current hip pain first manifested itself during boot camp in service, she is not, as a lay person, competent to offer a medical opinion as to the cause of her claimed condition. Epps v. Brown, 9 Vet.App. 341, 344 (1996); Espiritu, supra. The Board would note the fact that the VA authorized an exam for the veteran’s claimed condition, does not mean that the veteran, who did not fulfill her statutory requirements to establish a well-grounded claim, is entitled to the duty to assist. Slater v. Brown, 9 Vet.App. 240 (1996) (Whether or not a VA examination should be conducted under 38 C.F.R. § 3.326 is an issue that arises only where a claim has already been determined to be well-grounded). Consequently, the veteran has not presented a well-grounded claim. The Board would also note, that in its Informal Brief Presentation, the veteran’s representative presented extensive arguments suggesting that comments made by the Director, VA Compensation and Pension Service, in a May 24, 1996 letter, indicated that that the duty to assist exists even if the veteran has not presented a well-grounded claim. In response to recently modified provisions of the VA Adjudication Manual, M21-1 (M21-1), the Director did state that RO decisions pertaining to the issue of well groundedness would not be made until “the claim had been fully developed.” M21-1, Part III, 1.03(a) (Change 50) (Feb. 25, 1996) and M21-1, Part VI, 2.10(f) (Change 48) (Aug. 5, 1996). However, for the reasons stated below, “fully developed” does not equate to the duty to assist. As a preliminary matter, the Board would note that M21-1 Part VI, 2.10(f), which states “the duty to assist will prevail while development is undertaken,” is not applicable. A careful reading of this provision clearly shows the initiation of this “development” is predicated on the claim being “potentially plausible on a factual basis” (essentially, a well-grounded claim). Consequently, development is undertaken pursuant to this provision once a the veteran has presented a well-grounded claim. As she has not, this provision is not applicable to the veteran’s case. M21-1 Part III, 1.03(a) states “[b]efore a decision is made about a claim being well-grounded, it will be fully developed.” The Court has held repeatedly that only when a claim is well grounded does the VA have an obligation to “assist such a claimant in developing the facts pertinent to the claim.” Robinette v. Brown, 8 Vet.App. 69, 77-74 (1995). See also Epps v. Brown No. 93-438 (U.S. Vet.App. Aug. 27, 1996); Beausoleil v. Brown, 8 Vet.App. 459, 465 (1996). Therefore, until a the veteran has submitted a well-grounded claim, the VA is under no duty to establish the elements of his claim. Robinette, 8 Vet.App. at 76 (i.e. conduct a thorough and comprehensive medical examination to establish a causal nexus between an inservice injury and a current disability). Therefore, the requirement to “fully develop” a claim pursuant to M21-1 Part III, 1.03(a) is not analogous to the duty to assist which arises after a well-grounded claim has been submitted. The requirement applies to ensuring that the veteran has not filed a defective or incomplete application which would make development of the claim not feasible. Robinette, 8 Vet.App. at 78. Consequently, “fully developed” under the M21-1 means if the veteran’s application for benefits is incomplete, the VA shall notify the veteran of the evidence necessary to complete the application. Id. at 80. Therefore, contrary to the representative’s assertions, the RO has informed the veteran of the evidence necessary to complete her application. In a November 1994 letter to the veteran, the RO requested her to provide evidence which showed that her claimed disabilities had been treated since her discharge from service. In addition, the RO ordered a VA examination though it was under no obligation to do so. Consequently, the RO has ensured that the veteran has submitted a complete application. Finally, the veteran has not put the VA on notice that competent evidence exists that supports her lay assertions that she has suffers from a chronic hip disability which is linked to a disease or injury while in service. The veteran informed the RO in a recent statement that she had not seen a civilian doctor since having left the military. In an April 1996 statement, the veteran reported that she had no other medical information to send in support of her case, and that she had specifically not been treated by a doctor for her right hip pain. Consequently, the RO has met its burden under 38 U.S.C.A. § 5103(a) by informing the veteran of the evidence necessary to complete her application for benefits. Therefore, the Board is of the opinion that the veteran’s claim has been fully developed as the RO has associated with the claims folder all the available medical records for consideration. Under the circumstances of this case, the VA has not been put on notice that any other relevant evidence exists, or could be obtained, which, if true, would make the veteran’s claim “plausible.” Robinette, 8 Vet.App. at 80. Consequently, a remand is not appropriate under the facts of this case. Since there is no competent evidence to establish a nexus between the veteran’s initial hip complaints in service and her current hip pain, or any currently demonstrated chronic hip disability, a well-grounded claim has not been presented. Caluza v. Brown, 7 Vet.App. at 506; See also Brammer; Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). Accordingly, since she has not presented a well-grounded claim, the Board finds that service connection for a bilateral hip disorder is not warranted. ORDER As a well-grounded claim for service connection for a bilateral hip disorder has not been presented, the appeal is denied. REMAND In the January 1995 VA examination, the examiner did not appear to detail all the manifestations attributable to the service-connected postoperative residuals of a gall bladder removal and comment on the severity of any symptoms caused by this condition. Furthermore, it is not clear from the record whether the examiner reviewed the service medical records prior to his examination of the veteran. If a VA examination does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (1996). In addition, the fulfillment of the duty to assist includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet.App. 121, 124 (1991). Therefore, the veteran should afforded another VA examination which meets the requirements of 38 C.F.R. § 4.2. Consequently, the case must be remanded for additional development of the record. To ensure that the Department of Veterans Affairs (VA) has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the regional office (RO) for the following development: 1. The RO should take the appropriate steps to contact the veteran and obtain the names and addresses of all medical care providers who have treated the service-connected postoperative residuals of her gall bladder removal or gastroesophageal reflux disease since April 1996. This should include pertinent VA outpatient records. Based on his response, the RO should obtain copies of all of the records from the identified treatment sources and associate them with the claims folder. 2. The veteran should be afforded a special VA examination to determine the current severity of any symptoms related to the removal of the gall bladder, and to determine the current extent and likely etiology of the claimed gastroesophageal reflux disease. All indicated testing in this regard should be accomplished. The claims folder should be made available to the examiner for review before the examination. The examiner is requested to elicit a full history from the veteran of any symptoms related to the service-connected postoperative residuals of the removal of her gall bladder, and make detailed findings to include the severity of such symptoms. Based on his/her review of the case, it is requested that the examiner express an opinion as to the medical probability that the veteran is suffering from gastroesophageal reflux disease which had its onset in service or, in the alternative, was caused or aggravated by the service-connected disability. The examiner should explain the basis for his/her opinion and reconcile it with any previously reported medical evidence in the claims folder. 3. After the development requested above has been completed, the RO should again review the veteran’s claims. If any benefit sought on appeal remains denied, the veteran and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1996) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. STEPHEN L. WILKINS Member, Board of Veterans' Appeals 38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1996), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1996). - 2 -