Citation Nr: 0535106 Decision Date: 12/30/05 Archive Date: 01/10/06 DOCKET NO. 01-02 511A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for metrorrhagia. 3. Entitlement to service connection for squamous intraepithelial lesion (cervix). 4. Entitlement to service connection for conjunctivitis of both eyes. 5. Entitlement to service connection for bilateral shin pain. 6. Entitlement to service connection for recurrent ingrown toenails (right great toenail). 7. Entitlement to service connection for herpes simplex II (claimed as herpes stomatitis). 8. Entitlement to service connection for gastroenteritis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. P. Shonk, Associate Counsel INTRODUCTION The veteran served on active duty from November 1994 to March 1999. This matter comes to the Board of Veterans' Appeals (Board) from an April 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California-jurisdiction subsequently resided with the Waco RO. It is noted that the veteran cancelled a February 2005 scheduled hearing before a Veterans Law Judge, and accordingly, the Board will proceed with consideration of her claims. The issues of entitlement to service connection for menorrhagia is addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. There is no clear and unmistakable evidence that the veteran's PTSD was not aggravated by service. 2. The veteran incurred PTSD during active service. 3. The record lacks evidence of a current disability of squamous intraepithelial lesion (cervix). 4. The record lacks evidence of a current disability of bilateral conjunctivitis. 5. The record lacks evidence of current treatment for, or symptomatology from, a bilateral shin disability. 6. The record lacks evidence of current treatment for, or symptomatology associated with, in-service toenail problems. 7. The record contains evidence of initial in-service clinical finding of herpes simplex, post-service clinical finding of herpes simplex II, and lesion (cold sore). 8. The record lacks evidence that the veteran currently suffers from gastroenteritis, and post-service medical records are negative for such a disability. CONCLUSIONS OF LAW 1. The presumption of soundness has not been rebutted by clear and unmistakable evidence demonstrating that PTSD was not aggravated by service, and therefore the veteran is presumed sound. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304 (2005); VAOPGCPREC 3-03 (July 16, 2003). 2. PTSD was incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2005). 3. Service connection for squamous intraepithelial lesion (cervix) is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2005). 4. Service connection for conjunctivitis of both eyes is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2005). 5. Service connection for a bilateral shin disability is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2005). 6. Service connection for recurrent ingrown toenails (right great toenail) is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2005). 7. Service connection for herpes simplex II (claimed as herpes stomatitis) is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.309 (2005). 8. Service connection gastroenteritis is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Prior to assessing the merits of the appeal, VA's application of the Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126, must be considered. The record contains July 2003, November 2003, and July 2004 letters informing the veteran of which portion of information should be provided by the claimant, and which portion VA will try to obtain on the claimant's behalf. The latter letter told the veteran of information and evidence needed to substantiate and complete a claim of service connection, and listed the evidence of record concerning the pending claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Court in Pelegrini v. Principi, 18 Vet. App. 112 (2004), continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In a case, however, where a claim was pending before VCAA enactment, the Court "specifically recognizes where . . . notice was not mandated at the time of the initial AOJ decision, the AOJ did not err in not providing such notice specifically complying with section 5103(a) / § 3.159(b)(1) because an initial AOJ adjudication had already occurred." Id. at 120. The Court held that in such a circumstance the veteran still retained the right to VCAA content-complying notice and proper subsequent VA process. In this case, the veteran filed claims pre-VCAA. As such, the RO supplied the veteran with subsequent notification via the letter referred to above. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005) (holding that any timing error can be cured when VA employs proper subsequent process). Moreover, the appellant was generally advised to submit any additional evidence that pertained to the matter when the July 2004 correspondence stated: "If there is any other evidence or information that you think will support your claim, please let us know. If you have any evidence in your possession that pertains to your claim, please send it to us." Pelegrini, 18 Vet. App. at 121. Next, the VCAA requires VA to assist the claimant in obtaining evidence necessary to substantiate a claim, which includes providing a medical examination when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159. All available service medical and personnel records have been obtained. The veteran underwent a July 1999 VA examination for the purposes of clarifying diagnoses, and the report is sufficient for that purpose. The RO obtained VA treatment records from Central Texas Health Care System from August 2001 to April 2004, and private records from Drs. Polito and Burgess. The record also contains several statements made by the veteran concerning her claims. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). It is further noted that upon receipt of the supplemental statement of the case, the veteran has not submitted a statement, or otherwise indicated, that there is further outstanding and relevant evidence. Based on the foregoing, given the circumstances of this case, any additional development or notification would serve no useful purpose, and VA has satisfied its duties to the veteran. I. Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Also, certain chronic diseases may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C.A. § 1111. Regulation provides that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination." In July 2003, the VA General Counsel issued a precedent opinion holding that to rebut the presumption of sound condition in 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. The Board is bound to follow the precedent opinions of the General Counsel. 38 U.S.C.A. § 7104(c). A pre-existing 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. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). In claims for VA benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). PTSD The veteran's service medical records (SMRs) contain a November 1993 enlistment examination (Report of Medical Examination) that is negative for any clinical abnormality, including psychiatric. The veteran was deemed qualified for service. Apparently the veteran began to drink alcohol in- service to the extent that treatment was necessary, and at that time she was diagnosed as having PTSD. An August 1998 mental health services evaluation indicated that the veteran had trouble sleeping for the first time upon entering military service, as well as experiencing low energy. The veteran developed auditory hallucinations after boot camp, as well as memory difficulties. A November 1998 Report of Medical Board noted the veteran's past history with childhood trauma, as well as the in-service manifestations of mental and social difficulties. Diagnoses were Axis I, schizoaffective disorder, did not exist prior to entry; PTSD, existed prior to entry, characterized by sexual abuse as a child and teenager with feelings of helplessness, intense psychological distress at exposure to external cues that symbolized an aspect of the trauma (living in the barracks with men), with efforts to avoided men, diminished interest in activities, sense of foreshortened future, insomnia, irritability, problems with concentration, and hypervigilance; and alcohol dependence in sustained full remission, did not exist prior to entry. The record also contains a March 1999 outpatient psychiatry clinic note, and veteran expressed her anger about the results of the Medical Board. The attending assessor noted that the Central Physical Evaluation Board had stated that the veteran's disorders existed prior to entry, despite the fact that the Medical Board stated that her schizoaffective disorder and alcohol dependence did not exist prior to entry. Due to the findings, they found the veteran unfit for duty without a rating. The diagnoses included PTSD, existed prior to service, service aggravated. Post-service, at a June 1999 VA fee-basis examination, the examiner diagnosed the veteran as having PTSD, and was very certain that the veteran's PTSD started from her abuse and "things got out of control after she joined the Marines by being around too many men." The examiner noted that the alcohol abuse was a very clear fact, and according to the veteran, she had been using to cope with the stress. The examiner summarized that the veteran had been abused and molested as a child and teenager; she went to the Marine Corps, and being under stress and around 400 men in camp made her scared and she started to have symptoms of PTSD; and the PTSD was induced by events before military service but the veteran's symptoms started to flare up to acute phase during her military service. The record contains a November 2001 VA psychology assessment, which the veteran had sought at the request of her college. The veteran stated that she had suffered further sexual aggression while in the military, and had begun to obtain psychiatric services in an effort to attenuate the effects. Axis I diagnosis included PTSD. An August 2003 mental health clinic note contained the veteran's report that in service she had been stalked by a male soldier, and subjected to verbal comments and abuse by other male soldiers. The clinical psychologist noted that experience was made markedly more stressful by an extensive history of early childhood physical and sexual abuse by her stepfather. The diagnostic impression was PTSD with depression. Another August 2003 psychiatry consultation noted that the veteran had experienced bulimia nervosa, which had peaked during her years in the Marines. A careful review of the record indicates that the veteran's enlistment examination did not note any psychiatric abnormality. The record, however, contains medical opinions that the veteran's PTSD existed prior to service, and as such, there is clear and unmistakable evidence that the disease or injury existed prior to service. See VAOPGCPREC 3-03. VA cannot, though, rebut the presumption of soundness with clear and unmistakable evidence that the veteran's PTSD was not aggravated by service. In fact, in-service and post- service medical opinions have generally concluded that the veteran's PTSD was aggravated during active duty. Given the initial in-service manifestation of PTSD, and the continued manifestations of symptomatology and diagnosis thereof as shown by recent VA treatment records, service connection is warranted under 38 C.F.R. § 3.303. Squamous intraepithelial lesion (cervix) The veteran's SMRs contain a February 1999 cytology report that identified squamous atypia of undetermined significance, and cellular changes were suggestive of human papilloma virus infection. A March 1999 treatment record indicated that the veteran strongly desired LEEP for treatment. Post-service, at a July 1999 fee-basis VA examination, the examiner noted that the veteran had had Low-grade squamous intraepithelial lesions diagnosed after a PAP and subsequent colposcopy with biopsy. The veteran had a loop electrosurgical excision procedure (LEEP) done in March 1999, and had not presented for follow-up PAP smears. The veteran had no current symptoms. In terms of a diagnosis, the examiner noted that there was none; the PAP was normal. At the time of the examination, there was no objective evidence of any genitourinary abnormality. An April 2003 VA cytopathology report concerning a conventional Pap smear was negative for intraepithelial lesion or malignancy. The existence of a current disability is the cornerstone of a claim for VA disability compensation such that a claimant must first have a disability to be considered for service connection. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). See also Hickson v. West, 12 Vet. App. 247, 253 (1999). Because the record lacks evidence that the veteran currently suffers from squamous intraepithelial lesion, a crucial element of service connection is absent. As such, the preponderance of the evidence is against the claim, and the doctrine of the benefit of the doubt cannot be resolved in the veteran's favor. Conjunctivitis The veteran's SMRs contain an April 1997 notation of right eye conjunctivitis. A May 1997 narrative summary from when the veteran had been hospitalized, contained a discharge diagnosis of conjunctivitis of the left eye (she had been given Sulfacetamide drops). Post-service, at a July 1999 fee-basis VA examination, the examiner noted that there were no findings of conjunctivitis. The veteran's eyes were normal, and there was no redness or discharge of the eyes. A December 2000 treatment record from Daryl Burgess, D.O., found that the veteran's conjunctivae were normal. An August 2001 VA treatment note indicated that the veteran's conjuctiva were pink and without discharge. The existence of a current disability is the cornerstone of a claim for VA disability compensation such that a claimant must first have a disability to be considered for service connection. See id. Because the record lacks evidence that the veteran currently suffers from bilateral conjunctivitis, a crucial element of service connection is absent. As such, the preponderance of the evidence is against the claim, and the doctrine of the benefit of the doubt cannot be resolved in the veteran's favor. Bilateral shin pain The veteran's SMRs indicate that in August 1998, she complained of 1-2 weeks of bilateral tibial pain with running on hard surface; the assessment was shin splints. A month later, the veteran's shins still hurt, and a bone scan was ordered to rule out bilateral stress fracture. The ensuing radiology report noted that the veteran had had chronic shin pain worsening over the last two months, and the impression was normal bilateral tibia and fibula. Post-service, at a July 1996 VA fee-basis examination, the veteran complained of bilateral shin pain when she had to walk all day. The veteran stated it had started in the military, described as shin splints, and when she walked for long distances on hard surfaces the symptom returned. After physical assessment, the examiner stated that for the condition of bilateral shin pain, the diagnosis was periostitis of the tibia, resolved; there was no objective evidence of abnormality. The existence of a current disability is the cornerstone of a claim for VA disability compensation such that a claimant must first have a disability to be considered for service connection. See id. Because the record lacks objective evidence that the veteran currently suffers from a disability associated with in-service symptoms of shin pain, a crucial element of service connection is absent. As such, the preponderance of the evidence is against the claim, and the doctrine of the benefit of the doubt cannot be resolved in the veteran's favor. Recurrent ingrown toenails (right great toenail) The veteran's SMRs indicate that in January 1995, the veteran sought to have an ingrown toenail examined of the left foot, 3rd digit. The assessment was mild, resolving ingrown toenail. The veteran was educated on how to clip toenails to prevent the problem. In October 1995 the veteran presented with a long history of mycotic nail, and had been treated with topical, and toe nail removal. Assessment found a thickened nail, which appeared mycotic, no secondary infection, and painful along medial/lateral bodies and direct pressure. The veteran wanted nail bed obliteration. By October 23, four days status post total nail avulsion with phenal matrixectomy on left hallux, the veteran was still sore. The assessment was normal healing. In March 1998, the veteran sought treatment for yellow/brown discoloration of right 4th fingernail, and the assessment was onychomycosis. In May 1998, the veteran sought treatment for nearly resolved onychomycosis of the left 3rd fingernail. Post-service, at a July 1999 VA fee-basis examination, the veteran stated that she had dropped a vacuum on her right great toe; subsequently the toe had become dystrophic and had to be removed with a matrixectomy, and the nail had not grown back. The veteran currently experienced some mild discomfort that caused her to stop what she was doing-otherwise, there were no other symptoms. After a physical assessment, the examiner stated that there was no present evidence of inflammation, infection, or tenderness, and noted the history of the toe problem. The existence of a current disability is the cornerstone of a claim for VA disability compensation such that a claimant must first have a disability to be considered for service connection. See id. The record lacks any objective evidence that the veteran suffers from a residual disability due to any in-service toenail problem. As such, the preponderance of the evidence is against the claim, and the doctrine of the benefit of the doubt cannot be resolved in the veteran's favor. Herpes simplex II The veteran's SMRs contains a May 1997 narrative summary from hospitalization with a discharge diagnosis including herpes stomatitis (the veteran had been given hydrogen peroxide and Xylocaine viscous for herpes stomatitis). The records contain a February 1998 notation of HSV (herpes simplex virus) positive. A note stated that the veteran knew and would follow-up with new lesions. Post-service, at a July 1999 fee-basis VA examination, the examiner noted current laboratory evidence of infection with Herpes simplex virus II. A July 2002 VA outpatient note indicated that the veteran had a blister to the lower lip, and small similar lesion on the upper lip-the assessment was cold sore. Based upon the regulations concerning chronicity in light of the cited in-service and post-service clinical findings, service connection for herpes simplex is warranted. Gastroenteritis The veteran's SMRs indicate that in January 1995 the veteran had viral gastritis. In September 1996 the veteran complained of mid gastric pain tat was a dull ache but occasionally sharp. The impression was probable gastritis. In December 1996, the veteran complained of feeling dehydrated, and fatigued; the impression was viral gastroenteritis. A May 1997 narrative summary for a hospitalization included a discharge diagnosis of gastroenteritis, and had been treated with Kaopectate and Maalox. In August 1998, she complained of abdominal pain, nausea, diarrhea, and anorexia; the assessment was gastroenteritis. The record also contains a December 1999 treatment record from Valley Medical Group, and the veteran had abdominal pain most likely secondary to gastritis. Post-service, at a July 1999 fee-basis VA examination, the veteran related that she experienced nausea when she was upset or nervous, and sometimes diarrhea 4 to 5 times a day last for 2 to 3 days. She denied hemoptysis, melena, or hematochezia. She had no pain, and did not receive any treatment. She stated that no tests had been done. Since the symptoms had resolved now that she was no longer on Depo- Provera, and did not intend to seek medical attention. The examiner noted that for the condition of gastroenteritis, the diagnosis was history of chronic gastroenteritis. The veteran reported that her upset stomach had resolved after discontinuing the Depo-Provera. Again, the record is negative concerning a current disability of gastroenteritis. It appears that any gastroenteritis was an acute incidence in service, and is not a chronic disability. Because the preponderance of the evidence is against the claim of service connection, the benefit of the doubt cannot be resolved in the veteran's favor. ORDER Entitlement to service connection for PTSD is granted. Entitlement to service connection for squamous intraepithelial lesion (cervix) is denied. Entitlement to service connection for conjunctivitis of both eyes is denied. Entitlement to service connection for bilateral shin pain is denied. Entitlement to service connection for recurrent ingrown toenails (right great toenail) is denied. Entitlement to service connection for herpes simplex II (claimed as herpes stomatitis) is granted. Entitlement to service connection for gastroenteritis is denied. REMAND In light of the VCAA, additional evidentiary development is necessary. Metrorrhagia The veteran's SMRs contain a May 1996 treatment record where she complained of continuous bleeding on Depo-Provera. A June 1996 notation indicated that the veteran's had irregular bleeding secondary to Depo, which had been controlled on 1/35. A July 1997 Report of Medical History on which the veteran recorded that she had had a change in menstrual pattern; follow-up remarks indicated that the vetera was on Depo, so not getting her period. A June 1998 Report of Medical History for the purpose of separation contained that veteran's notation that she had a change in menstrual pattern, with a remark by the attending assessor that the veteran's menses was now normal. Post-service, at a July 1999 fee-basis VA examination, the veteran reported that she had regular periods with a seven day bleeding period. The veteran stated that she had no symptoms at the time. There was no pain associated with the condition, and there was sometimes abnormal bleeding last for 7 t0 8 days, and she described her bleeding as moderate to severe, requiring 5 to 7 pads a day. The examiner stated that for the condition of metrorrhagia, the diagnosis was irregular periods caused by Depo-Provera, now resolved. A March 2001 private treatment record from Daryl Burgess, D.O., contains the veteran's report that she had heavy menstrual bleeding. She had been having intermittent menstrual bleeding since January. The assessment included menorrhagia, uncertain etiology, possibly related to hormone withdrawal. A September 2001 VA treatment note indicated an assessment of menorrhagia, no evidence of anemia. The veteran expressed that she wanted a consult with OB/Gyn for menstrual bleeding, and irregular periods. In February 2003, the veteran's past medical history was noted as abnormal PAP/menorrhagia. In a September 2003 statement, the veteran asserted that since undergoing the LEEP procedure in service, she had had very discomforting menstrual cycles and at times the cramping was unbearable. As of November 2003, the veteran's problem list in the Central Texas VA health system included menorrhagia. It appears that the July 1999 VA examiner did not review the veteran's claims file. As such, the veteran should be afforded another examination for the purposes of clarifying a diagnosis, and a nexus opinion. Also, in a March 2001 VA Form 9, the veteran stated that she was being treated at the Santa Barbara VA outpatient clinic for metrorrhagia, and the RO should attempt to obtain any such records. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should obtain any outstanding treatment records from the Santa Barbara VA outpatient clinic (as identified on a March 2001 VA Form 9). 2. The veteran should undergo a VA examination, with claims file review. The examiner should particularly assess the veteran's service medical records in relation to post-service medical records (including the veteran's assertion that she had very discomforting menstrual cycles after the LEEP), and determine whether it is at least as likely as not that any metrorrhagia was incurred in or related to service. 3. Then, the RO should readjudicate the veteran's claim of service connection for metrorrhagia. If the determination of this claims remains unfavorable to the veteran, the RO must issue a supplemental statement of the case and provide her a reasonable period of time in which to respond before this case is returned to the Board 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 Supp. 2005). ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs