Citation Nr: 9834687 Decision Date: 11/24/98 Archive Date: 12/01/98 DOCKET NO. 95-03 059 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for pelvic inflammatory disease. 2. Entitlement to service connection for a hysterectomy, to include as secondary to service-connected history of ovarian cysts. 3. Entitlement to an increased (compensable) disability rating for service-connected history of ovarian cysts. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jonathan B. Kramer, Associate Counsel INTRODUCTION The veteran had active duty service from June 1957 to October 1958, and from October 1959 to May 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 1993 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied service connection for pelvic inflammatory disease and for a hysterectomy, but granted service connection for history of ovarian cysts, assigning a noncompensable disability rating. CONTENTIONS OF APPELLANT ON APPEAL The veteran and her representative contend that the veteran currently suffers from pelvic inflammatory disease which originated in service. It is further contended that her service-connected ovarian cyst was the proximate cause of her hysterectomy after service. In addition, the veteran contends that the currently assigned noncompensable disability rating for her ovarian cyst does not reflect the severity of her disability. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), 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 that the veteran’s claims of entitlement to service connection for pelvic inflammatory disease and for a hysterectomy, to include as due to a service-connected ovarian cyst, are not well-grounded. It is also the decision of the Board that the preponderance of the evidence is against entitlement to a compensable disability rating for the veteran’s service-connected history of ovarian cysts. FINDINGS OF FACT 1. There is no medical diagnosis of current pelvic inflammatory disease. 2. There is no medical evidence of a nexus between the veteran’s postservice hysterectomy and her period of active military service, nor is there medical evidence of a nexus between her hysterectomy and her service-connected history of ovarian cysts. 3. The veteran’s service-connected history of ovarian cysts is manifested by symptoms that do not require continuous treatment. CONCLUSIONS OF LAW 1. The veteran has not submitted a well-grounded claim of entitlement to service connection for pelvic inflammatory disease. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran has not submitted a well-grounded claim of entitlement to service connection for a hysterectomy, to include as secondary to service-connected history of ovarian cysts. 38 U.S.C.A. § 5107(a) (West 1991). 3. The schedular criteria for a compensable disability rating for the veteran’s service-connected history of ovarian cysts have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.116, Diagnostic Code 7615 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for Pelvic Inflammatory Disease and Hysterectomy The law provides that a veteran is entitled to service connection for a disease or injury incurred or aggravated while in service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Additionally, service connection may be granted for a disorder found to be proximately due to, or the result of, a service-connected disability, including on the basis of aggravation. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). However, as an initial matter, the Board must first determine whether the veteran has submitted well-grounded service connection claims as required by 38 U.S.C.A. § 5107(a). A well-grounded claim is one that is plausible, capable of substantiation or meritorious on its own. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). While the claim need not be conclusive, it must be accompanied by supporting evidence. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). To establish that a claim for service connection is well- grounded, a veteran must present medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Epps v. Gober, 126 F.3d 1464, 1467-68 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Alternatively, the United States Court of Appeals for Veterans Claims (Court) has recently indicated that a claim may be well-grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488 (1997). The Court held that the chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such condition. That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. If the chronicity provision does not apply, a claim may still be well-grounded “if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology.” Savage, 10 Vet. App. at 498. Looking to the evidence, service medical records (SMRs) show that the veteran was seen for complaints of pelvic pain in August 1958, which was medically attributed to old pelvic inflammatory disease and a kidney infection. A September 1958 physical examination of the veteran noted there to be a left ovarian cyst, 5 cm, uterus normal size. In October 1960, the veteran was diagnosed with pelvic inflammatory disease (also referred to as acute inflammation of the internal female genital organs), treated for about 1 week until recovered, and then released. The veteran’s May 1964 separation from service examination made no indication of an ovarian cyst, pelvic inflammatory disease, or recommendation for a hysterectomy. A November 1993 gynecological examination record showed the veteran gave a history of a partial hysterectomy in 1964 and complete hysterectomy in 1966. The examiner noted a scar on the abdomen, and that her uterus and ovaries were removed, but the examination was otherwise characterized as normal. After reviewing the evidence of record, the Board must conclude that the veteran’s claims of entitlement to service connection for pelvic inflammatory disease and for a hysterectomy are not well-grounded. While service medical records do show treatment for gynecological symptomatology and include references to pelvic inflammatory disease, there is no medical diagnosis of current disability. The question of whether a disability is currently present is one which requires diagnostic skills and must be made by medical experts. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The veteran may feel that she suffers from pelvic inflammatory disease, but it has not been shown that she is competent to render a diagnosis of current disability. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Therefore, the Board must rely on the medical evidence which does not include a diagnosis of current disability. Likewise, the claim based on the postservice hysterectomy is not well-grounded due to a lack of medical evidence of causation. There is no medical evidence linking the hysterectomy to the veteran’s service or to her service- connected history of ovarian cysts. Again, the veteran’s statements do not satisfy the medical nexus requirement and cannot, therefore, render her claim well-grounded. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In other words, the veteran needs to submit medical evidence that (1) she currently suffers from pelvic inflammatory disease which can be linked to her military service and (2) that her hysterectomy was caused by her service-connected history of ovarian cysts, or some other disease or injury incurred during service. By this decision, the Board is informing the veteran that competent medical evidence of a current disability as well as causation is required to render her claims well-grounded. 38 U.S.C.A. § 5103(a); Robinette v. Brown, 8 Vet. App. 69 (1995). The Board recognizes that this appeal is being disposed of in a manner that differs from that used by the RO. The RO denied the veteran’s claim on the merits, while the Board has concluded that the claim is not well-grounded. However, the Court has held that “when an RO does not specifically address the question whether a claim is well-grounded but rather, as here, proceeds to adjudication on the merits, there is no prejudice to the veteran solely from the omission of the well-grounded analysis.” Meyer v. Brown, 9 Vet. App. 425, 432 (1996). II. Entitlement to a Compensable Evaluation for History of Ovarian Cysts With regard to the final issue, the veteran is appealing the original assignment of a disability evaluation following an award of service connection, and, as such, the claim for the increased evaluation is well-grounded. 38 U.S.C.A. § 5107(a); Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). Once a claimant has presented a well-grounded claim, the VA has a duty to assist the claimant in developing facts that are pertinent to the claim. See 38 U.S.C.A. § 5107(a). The Board finds that all relevant facts have been properly developed, and that all evidence necessary for an equitable resolution of the issues on appeal has been obtained. The evidence includes the veteran's service medical records, VA medical records, private medical records, the report of a VA examination, and the veteran’s written statements. Under the circumstances, the Board finds that the duty to assist the veteran has been met. 38 U.S.C.A. § 5107(a). Pursuant to a December 1993 RO rating decision, the veteran was granted service connection for what the RO described for rating purposes as history of ovarian cysts and assigned a noncompensable disability rating. The rating decision articulated that the veteran’s SMRs demonstrated that she was diagnosed with an ovarian cyst during service. The RO noted in its decision that since the veteran had her ovaries removed as a result of hysterectomy procedures performed after service in 1964 and 1966, the ovarian cyst was no longer present. Under the laws administered by the VA, disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It appears from the record that the RO has rated the veteran’s disability under Diagnostic Code 7819 by analogy. That Code provision applies to new benign skin growths and essentially provides that the disability be rated for scars, disfigurement, etc. The RO has noted that due to postservice surgical procedures, the veteran does not have ovaries and therefore there are no ovarian cysts to evaluate. The RO then apparently noted that the veteran’s scar was nontender and therefore not compensable. The Board believes that this manner of rating the veteran’s history of ovarian cysts is somewhat confusing in light of the fact that the RO denied entitlement to service connection for a hysterectomy and the scar referred to by the RO appears to be a result of the hysterectomy. At any rate, the Board agrees with the underlying finding by the RO that the veteran currently suffers no symptomatology due to her history of ovarian cysts. The Board notes here that a new Diagnostic Code became effective in May 1995 (during the course of the present appeal) which deals specifically with ovary disease whereas there was not such a specific Diagnostic Code in effect at the time service connection was granted for history of ovarian cysts. Under new Diagnostic Code 7615, a 30 percent disability rating is for assignment when there are symptoms not controlled by continuous treatment; a 10 percent disability is for assignment when there are symptoms that require continuous treatment; and a noncompensable disability rating is for assignment when there are symptoms that do not require continuous treatment. However, the ultimate finding remains the same regardless of which criteria is considered. There is no medical evidence that the veteran currently suffers any impairment attributable to her service-connected history of ovarian cysts. Moreover, it should again be emphasized that there is no medical evidence of record that even suggests that the postservice hysterectomy was performed for the purpose of removing any ovarian cyst (and, as discussed earlier in this decision, there is thus no evidence to support a grant of service connection for the hysterectomy). Under the circumstances with no evidence of any current symptomatology related to an ovarian cyst, there is no basis for assigning a compensable rating under any available rating criteria applicable to the veteran’s claim. The potential application of various provisions of Title 38 of the Code of Federal Regulations have been considered whether or not they were raised by the veteran as required by the holding of the United States Court of Veterans Appeals in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), including the provisions of 38 C.F.R. § 3.321(b)(1). In the instant case, however, there has been no assertion or showing that the veteran’s service-connected history of ovarian cysts has caused marked interference with employment, necessitated frequent periods of hospitalization or otherwise renders impracticable the application of the regular schedular standards. In the absence of such factors, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER The appeal is denied as to all issues. ALAN S. PEEVY Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), 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 which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -