Citation Nr: 0706432 Decision Date: 03/06/07 Archive Date: 03/13/07 DOCKET NO. 03-30 620 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a total abdominal hysterectomy and bilateral salpingo-oophorectomy. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Raymond F. Ferner, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas that denied the benefit sought on appeal. The veteran, who had active service from September 1980 to September 2000, appealed that decision to the BVA, and the case was referred to the Board for appellate review. FINDINGS OF FACT 1. Uterine fibroids were present during service. 2. The veteran's total abdominal hysterectomy and bilateral salpingo-oophorectomy was necessitated by uterine fibroids. CONCLUSION OF LAW A total abdominal hysterectomy and bilateral salpingo-oophorectomy was incurred during active service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the merits of the veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2006). The notification obligation in this case was accomplished by way of letter from the RO to the veteran dated in December 2002 and March 2006. The RO also provided assistance to the veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The veteran and her representative have been kept appraised of the RO's actions in this case by way of the Statement of the Case and the Supplemental Statements of the Case, and been informed of the evidence considered, the pertinent laws and regulations and a rationale for the decision reached in denying the claim. The veteran and her representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced her in the adjudication of her appeal. Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the veteran's appeal. The veteran contends that her total abdominal hysterectomy was necessitated by uterine fibroids that arose from treatment she received with Tamoxifen for her service- connected breast cancer. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, the record must contain: (1) Medical evidence of a current disability, (2) medical evidence or in certain circumstances, lay testimony, of an inservice incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus or a relationship between a current disability and the inservice disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). While the veteran has contended that her uterine fibroids arose as a result of treatment she received for her service- connected breast cancer, specifically treatment with Tamoxifen, the medical evidence does not support this contention. For example, in an April 2005 addendum to a March 2003 VA examination, the examiner stated it was his opinion that treatment with Tamoxifen was not likely the cause of uterine enlargement. The physician did indicate that he had found one article that stated that Tamoxifen in post menopausal women may cause uterine fibroids, but noted that the veteran was pre-menopausal at the time of the diagnosis. The physician concluded that he believed that one was resorting to speculation if one was trying to blame Tamoxifen for uterine fibroid growth in this particular individual. Nevertheless, the Board believes that there is a basis for granting service connection in this case. The Board's review of the evidence discloses that there is evidence that serves to demonstrate that the veteran's uterine fibroids were present in service and since the uterine fibroids necessitated the total abdominal hysterectomy, service connection is warranted. There is no evidence in the veteran's service medical records that uterine fibroids were present in service. For example, a pelvic sonogram performed in January 2000 when the veteran was seen for pelvic pain showed a conclusion of an essentially normal ultrasound of the pelvis. In February 2001, less than five months following separation from service, a VA examination diagnosed the veteran as having asymptomatic uterine fibroids. A private sonogram of the pelvis performed in June 2001 disclosed the presence of at least three fibroids, the largest measuring 5 centimeters in maximum diameter. And while the veteran's uterine fibroids were first shown and diagnosed following the veteran's separation from service, in an August 2004 VA examination, which included a review of all pertinent records contained in veteran's claims file, the examiner stated that the fibroids were likely present while the veteran was in service. The Board believes that the presence of uterine fibroids so shortly following the veteran's separation from service, coupled with the opinion of the VA physician that those fibroids were present in service, provides the basis for granting service connection for the veteran's total abdominal hysterectomy since the hysterectomy was performed due to the uterine fibroids. Therefore, resolving any reasonable doubt in the veteran's favor, the Board concludes that service connection for a total abdominal hysterectomy and bilateral salpingo-oophorectomy is established. ORDER Service connection for a total abdominal hysterectomy and bilateral salpingo-oophorectomy is granted. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs