Citation Nr: 1101852 Decision Date: 01/18/11 Archive Date: 01/26/11 DOCKET NO. 07-06 447 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for residuals of uterine fibroids, to include hysterectomy. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The appellant had active service from May 1972 to October 1980. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of November 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The appellant testified before the undersigned Acting Veterans Law Judge at a Board videoconference hearing in June 2010. A transcript of this proceeding has been associated with the claims file. The appellant is seeking service connection for hysterectomy. The Board notes that the appellant's contentions, as expressed in statements, letters and at the videoconference hearing, is that she underwent a hysterectomy due to recurrent uterine fibroids. She has argued that the uterine fibroids began during her military service and that she no longer has fibroids due to having had a hysterectomy. Considering the appellant's contentions, in essence the appellant is seeking service connection for hysterectomy as a residual of the recurrent uterine fibroids which allegedly began during military service. Accordingly, the issue has been rephrased as shown on the title page. FINDINGS OF FACT 1. The appellant had uterine fibroids during her military service. 2. The appellant underwent a hysterectomy due to uterine fibroids. CONCLUSION OF LAW Residuals of uterine fibroids, to include a hysterectomy, were incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is seeking service connection for a hysterectomy. She alleges that her hysterectomy is due to gynecological problems, including uterine fibroids, which began during her military service. Legal Criteria Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) competent evidence of post-service continuity of the same symptomatology; and (3) competent evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Factual Background Service treatment records show that in August 1977, the appellant complained of cramps with no relief and severe dysmenorrhea. In January 1978, the appellant was seen for followup of fibroids but it was noted that fibroids could not be felt and that the examination should be repeated. The January 1978 report specifically referred to the August 1977 note. Records from March 1978 note the appellant was being followed for "fibroids." Private treatment records of March 1990 note that the appellant was diagnosed with uterine fibroids. The Veteran underwent a hysterectomy in March 1991 to treat the fibroids. A September 2004 VA examination report notes that the appellant had been suffering from chronic cystitis since 1979. The report also noted that she had a complete hysterectomy in March 1991 at Wilford Hall Hospital for fibroid tumor; at the time, ovaries were also removed due to cysts. A physical examination was conducted after which the following diagnosis was rendered: status post hysterectomy due to uterine fibroids. A second VA medical opinion was obtained in May 2006. Service treatment records, private medical records, and VA medical treatment records were reviewed. At the time, the examiner opined that the appellant's hysterectomy in 1991 at Wilford Hall Hospital was secondary to uterine fibroids and not due to chronic urinary tract infections with cystitis or chronic vaginitis. The examiner reasoned that hysterectomies are often performed due to benign fibroid tumors on the uterine. In an August 2010 letter, Dr. B. R. Cavazos, a board certified gynecologist, stated that after reviewing the surgical records to render an opinion regarding the appellant's hysterectomy, it was clear from the records that the appellant suffered from symptomatic uterine fibroids. She further stated that the total abdominal hysterectomy with bilateral salpingo-oophorectomy was medically indicated. Analysis The Board finds that the evidence, as delineated above, supports a finding of service connection for residuals of fibroids to include a hysterectomy. As noted, service treatment records show the appellant was seen on two occasions for fibroids. In January 1978, it was noted the appellant was being followed-up for fibroids after her complaints in August 1977 of severe cramping and severe dysmenorrhea. In March 1978, the appellant was once again seen for "fibroids." The Board is cognizant that in January 1978, the physician noted that the fibroids could not be felt. Moreover, the March 1978 records note fibroids in quotation marks. However, the January records point to prior symptomatology which the physician appeared to be relating to fibroids. Additionally, at no time were the fibroids noted to be questionable nor was the diagnosis qualified having to be ruled out. Rather, in January 1978 it was clearly stated she was being followed up for fibroids. Accordingly, the Board will accept that the appellant was noted to have fibroids in service. The Board further notes that all of the medical opinions of record relate the appellant's hysterectomy to uterine fibroids. Indeed, the VA examiners of September 2004 and May 2006, both state unequivocally that the hysterectomy was due to uterine fibroids. The May 2006 examiner also provided a rationale stating that hysterectomies are often performed due to benign uterine fibroids. Moreover, the private physician's letter of August 2010 notes that fibroids had been diagnosed and that the hysterectomy was medically required. While not directly stating that the hysterectomy was related to the uterine fibroids, such is a reasonable interpretation of the letter. Indeed, he only referenced the fibroid diagnosis when stating that the hysterectomy was medically required. As noted, fibroids were noted in service. Moreover, there are no contrary medical opinions on the question as to whether the hysterectomy of March 1991 was due to uterine fibroids. On the contrary, the medical evidence of record is unequivocal to the fact that the hysterectomy was due to the fibroids. Accordingly, service connection for residuals of uterine fibroids, to include hysterectomy must be granted. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the instant case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER Service connection for residuals of uterine fibroids, to include hysterectomy, is granted. ____________________________________________ APRIL MADDOX Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs