Citation Nr: 0421655 Decision Date: 08/06/04 Archive Date: 08/09/04 DOCKET NO. 98-00 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a gynecological disability. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kelli A. Kordich, Counsel INTRODUCTION The veteran had verified active military service from February 1979 to November 1979, from January 1991 to June 1991, and from December 1995 to April 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina (RO), which determined that the veteran had not submitted new and material evidence in order to reopen her claim for entitlement to service connection for a hysterectomy. When the veteran's claim was initially before the Board in October 1999, it was determined that the veteran had submitted new and material evidence in order to reopen her claim. FINDINGS OF FACT 1. Clear and unmistakable evidence of record establishes that the veteran's endometriosis preexisted the veteran's entry into active duty IN 1991. 2. The evidence is in equipoise as to whether the veteran's gynecological disorders, including endometriosis, increased in severity beyond the natural progress of the disease in service from January 1991 to June 1991. 3. The veteran's gynecological disorders, including endometriosis, resulted in a hysterectomy. CONCLUSION OF LAW The veteran's gynecological disorders, including endometriosis, were aggravated in service, resulting in a hysterectomy; the grant of service connection is warranted for gynecological disability with endometriosis resulting in hysterectomy. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background A review of the available service medical records does not reveal that the appellant underwent a hysterectomy while on active duty. Service medical records show a June 1978 examination which showed a negative pelvic examination. The veteran was examined in November 1979 and found to be 4 to 6 weeks pregnant. The veteran was separated from service in November 1979. Before deployment to Saudi Arabia, the veteran underwent a physical examination in January 1991. She reported undergoing a laser surgical procedure in 1989 for endometriosis with a good result. On the veteran's Report of Medical History form from March 1991, it was noted that the veteran underwent laser surgery for endometriosis in 1988 in Sarasota, Florida. In a statement dated June 1991, the veteran indicated that she had endometriosis while in the Southwest Asia region. In an individual medical history form dated in 1995, the veteran indicated that she was in pretty good health and was on estrogen replacement. VA Medical Center treatment records dated July 1990 to August 1994 indicated that the veteran was seen throughout 1992 for low back pain. The veteran was hospitalized in December 1992 with a diagnosis of dysmenorrheal and endometriosis and underwent a hysterectomy. E.M., in a statement dated in December 1997, indicated that he had been the veteran's executive officer during the Gulf War. He stated that the veteran had reported to his female executive officer that she had several periods during a month. He became aware of this and inquired about her rapid weight loss (losing over 40 pounds during the 6 months in the desert). He indicated that the camp's medical officer was concerned because of a persistent deep cough and lower- abdominal pain, related to her "cycle." He stated that medical facilities in their area were not equipped to investigate the problems dealing with "irregularity." E.M. stated that he advised the veteran that she should report these problems on her exit physical. At her March 1998 RO hearing, the veteran testified that she had endometriosis and had it treated in 1988. She stated that she had symptoms of burning in her right and left lower back. The veteran indicated that these symptoms resolved in 1988 after her laser procedure. She testified that she did not have recurrence of the burning in her lower back prior to going on active duty in January 1991. She indicated that while on active duty between January and June 1991 her periods were not as timely as they usually were. She stated that she kept a diary to indicate when her periods would occur. She noted different types of symbols in her diary to warn her when her period was about to come and had marked instances in her calendar from June 1998 to indicate lower back pain. She stated that for the 17 months after June 1991 until she underwent her hysterectomy, she had back pain that prompted the surgery. She described the back pain as a burning. She indicated that after the hysterectomy she did not have that burning type of back pain. At her hearing, the veteran submitted copies of her engagement calendar from 1991, specifically for the period in which she was in service. The calendar included different types of symbols, including shaded and non-shaded triangles regarding the veteran's menstrual cycles. At her March 2000 VA examination, the veteran reported that she had what she determined to be endometriosis and in 1985 underwent laser surgery and her symptoms resolved. The veteran indicated that she was never given a formal diagnosis of endometriosis by a physician. She stated that in 1991 she went to the Gulf War and started having irregular menses and after returning home, she noticed excessive fatigue and her menses were still irregular. She indicated she had a Pap smear done which showed endometrial hyperplasia. She was referred to Little Rock, Arkansas, and they did an ultrasound and a Pap smear and there was a question of whether there was a mass in her left lower quadrant. She indicated she underwent a laparoscopy at that time and had a complete hysterectomy, which was in 1992. The veteran denied any abnormal vaginal discharge, bleeding, bowel, or bladder dysfunction. The diagnoses were history of endometriosis; status post complete hysterectomy; depression. The examiner indicated that the veteran was treated for what seemed to be endometriosis prior to 1991 and again she was treated for endometriosis after 1991, which was the same disorder. The examiner indicated that there was an increase in the severity of her symptoms after returning home from the Gulf War in 1991. The examiner opined that as far as it being beyond what was the natural progression of the disease, this disease was not predictable and it could vary from patient to patient and certainly her history was no uncommon for this disease process. VA outpatient treatment records dated March 2001 to November 2002 show a history of hysterectomy. A VA examination dated May 2001 showed that the claims file was sent for review prior to the examination. It was noted that the veteran had a laparoscopy in 1988 for endometriosis upon entry into active duty in January of 1991. It was noted that at the time of discharge from active duty in June 1991 she had endometriosis and oligomenorrhea. A BVA remand dated November 2000 asked the examiner to comment on whether there was an increase in the severity of any disability that she had at the time of entry and at the time of discharge and the examiner indicted that not to the best of his medical knowledge. The examiner stated that the final pathology report for the veteran's hysterectomy revealed leiomyoma, endometriosis, and chronic cervicitis. The examiner indicated that there had not been an increase in severity in the veteran's endometriosis during her period of active duty from January to June 1991 and her hysterectomy was performed due to various diagnoses. Criteria On November 9, 2000, the VCAA was enacted. Pub. L. No. 106- 475, 114 Stat. 2096 (2000); see 38 U.S.C.A. §§ 5103, 5103A (West 2002). Among other things, the VCAA amended 38 U.S.C.A. § 5103 to clarify VA's duty to notify claimants and their representatives of any information that is necessary to substantiate the claim for benefits. The VCAA also created 38 U.S.C.A. § 5103A, which codifies VA's duty to assist, and essentially states that VA will make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim. Implementing regulations for the VCAA were subsequently enacted, which were also made effective November 9, 2000, for the most part. 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.159). The intended effect of the implementing regulations was to establish clear guidelines consistent with the intent of Congress regarding the timing and scope of assistance VA will provide to claimants who file a claim for benefits. 66 Fed. Reg. 45,620 (Aug. 29, 2001). Both the VCAA and the implementing regulations are applicable in the present case, and will be collectively referred to as "the VCAA." To comply with the aforementioned VCAA requirements, the RO must satisfy the following four requirements. First, the RO must inform the claimant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103 and 38 CFR 3.159(b)(1) (2003). Second, the RO must inform the claimant of the information and evidence the VA will seek to provide. See 38 U.S.C.A. § 5103 and 38 CFR 3.159(b)(1) (2003). Third, the RO must inform the claimant of the information and evidence the claimant is expected to provide. See 38 U.S.C.A. § 5103 and 38 CFR 3.159(b)(1) (2003). Finally, the RO must request that the claimant provide any evidence in the claimant's possession that pertains to the claim. See 38 U.S.C.A. § 5103 and 38 CFR 3.159(b)(1) (2003). By a letter dated December 2002, the RO has informed the appellant of the information and evidence not of record that is needed, the information and evidence that the VA will seek to provide, the information and evidence the appellant must provide, and requested any additional evidence the appellant has that pertains to the claim. 38 U.S.C.A. § 5103 and 38 CFR 3.159(b)(1) (2003); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In view of the procedures that have been undertaken in this claim, further development is not needed to comply with VCAA. The appellant has been informed of the information and evidence needed to substantiate his claim, and she has been made aware of how VA would assist her in obtaining evidence and information. She has not identified any additional, relevant evidence that has not been requested or obtained. Assistance shall also include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claims. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2003). After receipt of the December 2002 letter, the veteran submitted a Statement in Support of Claim, VA Form 21-4138, dated January 2003 in which she indicated that she had no further medical evidence to submit on her service connected hysterectomy claim. For the aforementioned reasons, there is no reasonable possibility that further assistance would aid in the substantiation of the claim. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131. Service connection may also 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). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. The specific finding requirement that an increase in disability is due to the natural progress of the condition will be met when the available evidence of a nature generally acceptable as competent shows that the increase in severity of a disease or injury or acceleration in progress was that normally to be expected by reason of the inherent character of the condition, aside from any extraneous or contributing cause or influence peculiar to military service. Consideration will be given to the circumstances, conditions, and hardships of service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a), (c) (2003). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where a pre- service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b) (2003). Analysis There are several medical reports showing the veteran had endometriosis before her active service in 1991, and the veteran does not contend otherwise. Therefore, there is clear and unmistakable evidence that the veteran's gynecological disability, including endometriosis, pre- existed her active service in 1991. The next question that must be resolved is whether the gynecological disability, including endometriosis, increased in severity in service beyond the natural progress of the disaease. With regard to this question, the evidence is mixed, but there is a very clear statement from the veteran's executive officer explaining that the veteran had persistent and substantial gynecological problems while serving in the Persian Gulf. At least one VA medical opinion is to the effect that the progress of gynecological disorders such as the veteran's is unpredictable. Although one VA examiner has reported that the endometriosis did not increase in severity in service, the same examiner concedes that the veteran had a hysterectomy within a relatively short time after service as a result of "various diagnoses." Taken together, the evidence reasonably supports the conclusion that the veteran's gynecological disability, including endometriosis, increased in severity in service beyond the natural progress of the disease and resulted in a hysterectomy shortly after service. Under such circumstances, the grant of service connection for gynecological disability with endometriosis, resulting in hysterectomy, is warranted. ORDER Entitlement to service connection for gynecological disability with endometriosis resulting in hysterectomy is granted. ______________________________________ G. H. SHUFELT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2