Citation Nr: 0300581 Decision Date: 01/10/03 Archive Date: 01/28/03 DOCKET NO. 96-32 628 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to service connection for an ovarian cyst. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Vavrina, Associate Counsel INTRODUCTION The veteran had active military service from June 1988 to August 1988, from June 1989 to August 1989, and from December 1990 to April 1991. She also served in the Army National Guard from February 1988 to April 1991. This case comes before the Board of Veterans' Appeals (Board) from an August 1995 rating decision of the No. Little Rock, Arkansas Regional Office (RO) of the Department of Veterans Affairs (VA), which in part, denied entitlement to service connection for an ovarian cyst, on the basis that the claim was not well grounded. A review of the record shows that the veteran was scheduled for a personal hearing before a Member of the Board at the RO in November 1996, but she failed to appear. As the veteran has neither submitted good cause for failure to appear or requested to reschedule the hearing, the request for a hearing is deemed withdrawn and the Board will continue with the appeal. See 38 C.F.R. § 20.704(d) (2002). In November 1997, the Board remanded the case to the RO for additional development. The case now is before the Board for further appellate consideration. A preliminary review of the claims file shows that, in an August 2002 VA Form 21-4138, the veteran indicated her disagreement with the denial of an increased rating for her service-connected lumbar spine disability in a July 2002 rating decision and requested service connection for osteo-arthritis secondary to her lumbar spine disability. The latter issue is referred to the RO for appropriate action and the former matter will be addressed in the REMAND portion of this decision. See Manlincon v. West, 12 Vet. App. 238 (1999). FINDINGS OF FACT 1. VA has properly developed and obtained all relevant evidence needed for an equitable disposition of, and adequately notified the veteran of the evidence necessary to substantiate, the claim addressed in this decision. 2. There is neither a current diagnosis of an ovarian cyst nor competent medical evidence of a causal link between the veteran's period of service or a service- connected disability and a claimed ovarian cyst. CONCLUSION OF LAW Claimed ovarian cyst was not incurred in or aggravated by active service, and is not etiologically or causally related to a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 1991 and Supp. 2002); 38 C.F.R. §§ 3.303, 3.310 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION During the pendency of the appeal, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000)) (codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2002). The VCAA became effective on November 9, 2000. This law not only did away with the concept of a well-grounded claim, but also imposed additional duties and obligations on the VA in developing claims. The new law includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This change is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). VA has also revised the provisions of 38 C.F.R. § 3.159 effective November 9, 2000, in view of the new statutory changes. See 66 Fed. Reg. at 45,620-32 (Aug. 29, 2001). VA is not required, however, to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. After examining the record, the Board is satisfied that all relevant facts pertaining to the veteran's service- connection claim have been properly developed as service, non-VA and VA medical records, lay statements, and VA examination reports dated in June 1998, March 1999, August 2000 and January 2002 have been associated with the claims file. With regard to the RO's compliance with the Board's November 1997 remand instructions, the Board notes that the RO was instructed to, and did in a December 1997 letter, ask the veteran to furnish the names and addresses of health care providers who had treated her for any gynecological (GYN) disorder and to sign authorizations for release of information from non-VA sources so that they could be associated with the claims file. The RO also was to obtain copies of any records of the veteran's March 1996 uterine surgery. Then, the RO was to schedule the veteran for examination to obtain opinions to ascertain whether the veteran had the claimed condition and, if she did, whether it was related to military service. In particular, the examiner was to offer opinions as to any relationship between the currently claimed ovarian cyst-related disorder, if found, and the symptoms noted in active duty and what, if any, relationship her current complaints and diagnoses on record, including ovarian or hydrosalpinx cysts, and uterine myoma, may have to the currently service-connected chronic vaginitis disorder. Upon completion, the RO was to re-adjudicate the veteran's claim and, if the claim remained denied, to issue a supplemental statement of the case (SSOC). In a December 1997 response to the RO's December 1997 letter, the veteran signed releases for private health care providers and indicated that all of her other health care was being provided by the VA Medical Center (VAMC) in Little Rock, Arkansas. Private treatment records from John L. Wilson, M.D., Archie Hearne, M.D. of the MetroCenter Health Clinic, the Cornerstone Clinic, and the Baptist Hospital and Outpatient Clinic have been associated with the record. VA treatment records from August 1994 to February 1996 and from May 1996 to August 2002 have been associated with the claims file. The Board also notes the RO did ask for VA hospital records and the VAMC indicated that the veteran had not been hospitalized since March 1996, but did not send the records of the veteran's March 1996 uterine surgery. The veteran was examined in June 1998, March 1999, August 2000 and January 2002. The March 1999 VA examiner stated that the veteran did not have an ovarian cyst on examination probably because she was not ovulating, noting that during the menstrual cycle of each menstruating woman, a functional ovarian cyst may occur although it is very small and seldom enlarged. Even if it became enlarged, as a rule it would not persist longer than three months. The RO issued SSOCs in June 2000 and April 2001. Although the RO did not obtain the records of the veteran's March 1996 uterine surgery at the VAMC, in light of the fact that no ovarian cysts were found on recent examination, the Board finds that the RO has substantially complied with the Board's November 1997 remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Thus, the Board is satisfied that all relevant facts have been properly developed, to the extent possible, and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5103A (West Supp. 2002). In this connection, the Board finds that the service, non-VA and VA medical records, lay statements, and VA examination reports, which evaluate the status of the veteran's health and the etiology of the claimed disorder, are adequate for determining whether service connection is warranted. Even though the RO originally denied the veteran's claim for service connection as not well grounded, the Board finds no prejudice to the appellant in this case by adjudicating the question of entitlement to service connection. This is so because the requirements regarding notice, which must be provided to the veteran under the VCAA have been satisfied by the various informational letters, June 1996 statement of the case, SSOCs issued in June 2000 and April 2001 (the latter SSOC discussed the claim on the merits), the Board remand, and various rating decisions, as the RO advised the veteran of the provisions of the VCAA and of what must be demonstrated to establish service connection, asked her to provide additional information, and advised her of the RO's efforts to obtain information in support of her claim. In light of the foregoing, the Board finds that the RO has notified the veteran of the evidence needed to substantiate her claim and has obtained and fully developed all relevant evidence necessary for an equitable disposition, particularly in light of the fact that no ovarian cyst was found on recent examination. As such, there has been no prejudice to the veteran in this case that would warrant further notice or development, the veteran's procedural rights have not been abridged, and the Board will proceed with appellate review. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). The veteran claims that she has an ovarian cyst, which is related to service or her service-connected vaginitis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. See 38 U.S.C.A. §§ 1110, 1131 (West Supp. 2002); 38 C.F.R. §§ 3.1(k), 3.303(a) (2002). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as cancer, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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). Further, if a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). 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). Generally, when a veteran contends that a service-connected disorder has caused a new disability, there must be competent medical evidence that the secondary disability was caused or chronically worsened by the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995); Jones v. Brown, 7 Vet. App. 134 (1994). The United States Court of Appeals for Veterans Claims (Court) has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required." Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The Court also has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Brown, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service. In order to prevail in a claim for service connection there must be medical evidence of a current disability as established by a medical diagnosis; of incurrence or aggravation of a disease or injury in service, established by lay or medical evidence; and of a nexus between the in-service injury or disease and the current disability established by medical evidence. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to substantiate service incurrence. The veteran has no current medical diagnosis of an ovarian cyst. Thus, she fails to satisfy the first element of a claim, that is, a current disability, and her claim for service connection fails. Even assuming that the veteran has an ovarian cyst, there is no competent medical evidence linking the claimed ovarian disorder to service or her service-connected vaginitis. The service medical records show that the veteran was treated in August 1989 for complaints of vaginal discharge. She was diagnosed with a yeast infection and was treated in December 1989 for vaginitis. In December 1990, the veteran was seen for complaints of a two-week history of abdominal pain, tenderness of the cervix, green discharge with itchiness and foul odor and some bleeding. The diagnosis in December 1990 was vaginitis vs. pelvic infection. VA treatment notes from February 1994 indicate that the veteran underwent surgery to remove a cyst on the right ovary. The preoperative diagnosis was severe pelvic pain. An August 1994 report refers to the removal of a left ovarian cyst, which appears to be a possible mistake regarding which ovary possessed the cyst. Subsequent treatment records also refer to a past history of a left ovarian cyst being removed in 1994, although the February 1994 record clearly states that it was a right ovarian cyst. An October 1995 VA treatment note reports complaints of abdominal pain for the past month and a half, described as crampy with no relief, accompanied by a yellow green discharge. These symptoms are noted to be similar to those complained of in December 1990. The diagnosis rendered in October 1995 was pelvic inflammatory disease, rule out left ovarian cyst. Treatment notes from December 1995 also reflect complaints of lower abdominal pain with a past history of recurrent pelvic inflammatory disease and of the ovarian cyst (said to be on the left). The indication was to rule out recurrent left ovarian cyst. A December 1995 ultrasound report shows findings of right adnexal cyst, hydrosalpinx vs. ovarian cyst, in addition to a 2.3-centimeters leiomyoma on the posterior wall of the uterus. VA treatment notes from January through March 1996, reflect continued gynecological complaints, including cramping and yellowish green discharge. The veteran underwent uterine surgery in March 1996, and was diagnosed post-surgery with uterine myoma, status post-laparoscopic myomectomy, minilaparotomy and uterine suspension. Private treatment records from February 1994 to March 1996 show treatment for complaints of pelvic pain and vaginal discharge with odor. A November 1995 ultrasound of the pelvis revealed a 3.2 by 2.2-centimeters fundal myoma, otherwise the examination was normal and the ovaries were within normal limits. A November 1995 pathology report was negative for malignant cells but bacterial vaginitis was found. In an April 1996 rating decision, the RO granted service connection for chronic vaginitis. Service medical records supporting grant reflect gynecological complaints which, in certain instances appear to be similar to symptoms noted when the veteran was diagnosed with an ovarian cyst in February 1994 and the possible recurrence of the cyst in 1995. VA treatment records from May 1996 to December 1997 reveal that the veteran had a fibroid surgically removed in March 1996. In May 1996, no ovarian masses were found and the veteran had a normal GYN examination. She complained of lower abdominal/pelvic pain, but no cause of pain was found on examination. At an August 1998 VA outpatient GYN examination, the veteran had no itching or foul order but complained that the same pain she had in May 1996 was no better or worse. There was pelvic tenderness noted on the left. The impression was bacterial vaginitis and pelvic pain. A December 1997 ultrasound of the pelvis noted that a previously seen simple cyst within the right ovary was smaller and that the right ovary measures 1.1 by 2.1- centimeters and was otherwise unremarkable. The left ovary was normal. A June 1998 VA gynecology examination reflected that the December 1997 ultrasound revealed bilateral normal-sized ovaries. The veteran had no symptoms at the time of examination and was determined to be in her sixteenth week of pregnancy. At the time of the March 1999 VA gynecology examination, the veteran was six weeks postpartum with an uneventful pregnancy followed by a tubal ligation. She complained of vaginal discharge with odor and said that it recurred every few weeks after treatment. On examination, bacterial vaginitis and amenorrhea, secondary to breastfeeding and lactation was found. The examiner noted that bacterial vaginosis is a vaginitis that is intermittent and can be either sexually transmitted or from the anal area following defecation. It is not a chronic infection. There are only two chronic vaginitides, one is tuberculosis (TB) and the other is related to diabetes and is usually a fungal etiological agent. In response to the remand instructions, the examiner stated that the veteran did not have an ovarian cyst at that time. One reason was perhaps because she was not ovulating because she was breastfeeding. The examiner added that during the menstrual cycle, a functional ovarian cyst occurs and is very small and seldom enlarged. When it does become enlarged, as a rule it does not persist longer than three months. VA treatment records from June 1999 to July 1999 show that the veteran had bacterial vaginosis in January 1999. An August 2000 VA gynecology examination report reveals that the veteran had had a diagnostic laparoscopic examination in July 2000 for break-through bleeding and for pelvic adhesions and was scheduled for a hysterectomy in about a week. On examination, there was copious white discharge and the epithelial cells were covered with Gardnerella bacteria. The diagnosis was recurrent bacterial vaginosis. The examiner added that there was some question of service connection because of recurrent infection of the vagina, which is the same bacteria that inhabits the colon and can be sexually transmitted from the husband to the wife in a ping-pong type manner. Because of this, the examiner questioned the reason why the problem was found to be service connected. A January 2002 VA gynecology examination report reveals that the veteran underwent a pelvic surgery consistent with myomectomy for pelvic pain, at which time one fibroid was removed. She also had a uterine suspension at that time. In 1999, she repeated the tubal ligation because of a pregnancy following the prior tubal. In July 2000, the veteran stated that she had a laparoscopy done and, as a result, underwent a hysterectomy for endometriosis and that she had had no problems since then. She reported suffering from three to four attacks of bacterial vaginosis yearly and treatment with antimicrobial therapies. On examination, the pelvic examination showed normal external genitalia and vaginal discharge. The right ovary was not enlarged and was nontender and very mobile on palpation. There was no evidence of scarring of the cuff. The impression was bacterial vaginosis. The operation reports from the Baptist Hospital for her hysterectomy done in August showed only left adnexal adhesions and adhesions of the uterine fundus, probably secondary to the uterine suspension done earlier. The examiner added that the recurrent bacterial vaginosis is not a service-connected infection and can occur, and reoccur, over time. Assuming that an ovarian cyst was found, based on the above, the condition would not be secondary to her service-connected vaginitis nor related to service. There is no evidence of an ovarian cyst in service and several VA examiners have noted that the type of vaginitis the veteran normally gets is not a chronic condition and is related to the same bacteria that inhabits the colon and can be sexually transmitted from the husband to the wife in a ping-pong type manner. Because of this, VA examiners have questioned the reason why the problem was found to be service connected at all. The only evidence the veteran has submitted that supports her claim is her own statements. She, as a lay person, with no apparent medical expertise or training, is not competent to comment on the presence, or etiology, of a medical disorder. Rather, medical evidence is needed to that effect. See Lathan v. Brown, 7 Vet. App. 359, 365 (1995); Espiritu, 2 Vet. App. at 494-95 (holding that laypersons are not competent to offer medical opinions). Thus, the veteran's statements do not establish the required evidence needed, and the claim must be denied. As noted above, there is no medical evidence of record of a current diagnosis of an ovarian cyst or medical evidence establishing a relationship between such claimed disorder, to include as secondary to service-connected vaginitis. The veteran offers only lay opinion as to diagnosis and nexus to service, which is insufficient for establishing a service connection claim, and, thus, the appeal must be denied. The Board considered the benefit of the doubt doctrine, however, as the preponderance of the evidence is against the veteran's claim; the doctrine is inapplicable. 38 U.S.C.A. § 5107 (West Supp. 2002); 38 C.F.R. § 3.102 (2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for an ovarian cyst is denied. REMAND In an August 2002 VA Form 21-4138, the veteran indicated that she disagreed with the denial of her claim for a rating in excess of 40 percent for residuals of a lumbar spine injury in a July 2002 rating decision. The Board finds that this statement is a notice of disagreement to the RO's decision issued in July 2002 denying an increased rating for residuals of a lumbar spine injury. The Court has held that where the Board finds a notice of disagreement has been submitted to a matter that has not been addressed in a statement of the case, the issue should be remanded to the RO for appropriate action. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED to the RO for the following: The RO should issue the appellant a statement of the case as to the issue of entitlement to a rating in excess of 40 percent for residuals of a lumbar spine injury. The appellant should be apprised of her right to submit a substantive appeal and to have her claim reviewed by the Board. The RO should allow the appellant the requisite period of time for a response. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until notified by the RO. The appellant and her representative have the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. A. BRYANT Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.