Citation Nr: 0812845 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 03-36 633 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a hysterectomy. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for a left shoulder disorder. 4. Entitlement to service connection for a neck disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Paul S. Rubin, Associate Counsel INTRODUCTION The veteran had active military service from June 1974 to June 1977. This appeal to the Board of Veterans' Appeals (Board) is from a November 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. As support for her claim, the veteran testified at a hearing before RO personnel in September 2004. In a recent January 2007 rating decision, the RO granted a nonservice-connected pension claim while denying various other claims the veteran had filed. However, she has not yet perfected an appeal of those additional claims by filing a notice of disagreement (NOD) and substantive appeal (e.g., VA Form 9 or equivalent statement). See 38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. § 20.200 (2007). Therefore, those claims are not before the Board. The Board is remanding the left knee, left shoulder, and neck disorder claims to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. But the Board is going ahead and deciding the hysterectomy claim. FINDING OF FACT There is no competent evidence indicating the treatment the veteran received during service for a vaginal laceration precipitated or is otherwise related to her post-service hysterectomy or its residuals. CONCLUSION OF LAW Neither the hysterectomy, itself, nor any associated residual is the result of disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Duties to Notify and Assist Review of the claims file reveals compliance with the Veterans Claims Assistance Act (VCAA). 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters from the RO to the veteran dated in January 2002 and November 2003. These letters effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing her of the information and evidence not of record that was necessary to substantiate her service connection for hysterectomy claim; (2) informing her of the information and evidence VA would obtain and assist her in obtaining; (3) informing her of the information and evidence she was expected to provide; and (4) requesting that she provide any evidence in her possession pertaining to her hysterectomy claim. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The RO did not, however, provide pre-decisional VCAA notice that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection for a hysterectomy is awarded, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Regardless, since service connection is being denied, no disability rating or effective date will be assigned, so not providing additional notice concerning these downstream elements of the claim is moot and, therefore, at most harmless error. 38 C.F.R. § 20.1102. See, too, Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Consequently, a further prejudicial error analysis by way of Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) is not required. The Board sees the RO did not provide the veteran with all general VCAA notice prior to the November 2002 adverse determination on appeal. But in Pelegrini II, the Court clarified that in these situations VA does not have to vitiate that decision and start the whole adjudicatory process anew, as if that decision was never made. Rather, VA need only ensure the veteran receives (or since has received) content-complying VCAA notice, followed by readjudication of her claim, such that she is still provided proper due process. In other words, she must be given an opportunity to participate effectively in the processing of her claim. The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) recently held that a statement of the case (SOC) or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, after providing the additional VCAA notice in November 2003 - after the initial rating decision and SOC, the RO again went back and readjudicated the claim in the more recent May 2005 and May 2007 SSOCs. So after providing the required notice, the RO reconsidered the claim - including addressing any additional evidence received in response to the notice. Hence, the timing defect in the notice has been rectified. All this considered, the veteran was afforded a meaningful opportunity to participate effectively in the adjudication of her claim. Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board had erred by relying on various post-decisional documents for concluding that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, but determining nonetheless that the evidence established the veteran was afforded a meaningful opportunity to participate effectively in the adjudication of the claims, so found the error was harmless). As for the duty to assist, the RO has obtained the veteran's service medical records (SMRs), service personnel records (SPRs), relevant VA treatment records, and the private medical records she identified and authorized VA to obtain. She also has submitted personal statements, hearing testimony, additional private medical evidence, and Social Security Administration (SSA) records. No medical examination has been conducted or medical opinion obtained with respect to the veteran's hysterectomy claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). However, the standards of McLendon are not met in this case. The evidence does not reflect a chronic gynecological disorder during service or residuals of her one instance of treatment for vaginal bleeding in service. Further, there is neither medical evidence demonstrating that any current gynecological disorder, status post hysterectomy, is linked to her military service, nor credible evidence of continuity of symptomatology of a gynecological disorder since service. Consequently, as her service and post-service medical records provide no basis to grant her claim, and in fact provide evidence against her claim, there is no basis for requesting a VA examination and opinion. Thus, the Board is satisfied that the duty to assist has been met. 38 U.S.C.A. § 5103A. Governing Laws and Regulations for Service Connection Service connection may be granted if it is shown the veteran suffers from a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). See also Hickson v. West, 12 Vet. App. 247, 252 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). A disorder also may be service connected if the evidence of record reveals the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494- 97 (1997). A demonstration of continuity of symptomatology is an alternative method of demonstrating the second and/or third Caluza elements discussed above. Savage, 10 Vet. App. at 495-496. For the showing of chronic disease in service, (or within a presumptive period per § 3.307), there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status generally do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). In this regard, the Court recently emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise (about evenly balanced for and against), with the veteran prevailing in either event, or whether instead a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; and Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The veteran contends that gynecological problems that started while she was in the military precipitated or are otherwise related to the hysterectomy she had many years later in January 2001, after service. She asserts that, after she received treatment during service for vaginal bleeding, her menstrual cycles continued to be "painful and heavy" after service until she had to have the hysterectomy in 2001. She adds that some records showing treatment for menstrual problems since service are unavailable to support her claim. See her hearing testimony at pages 1-3. As mentioned, the first and perhaps most fundamental requirement for any service-connection claim is proof the veteran currently has the alleged disability. Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. Concerning this, private treatment records from Baptist Medical Center confirm the veteran had a hysterectomy in January 2001. It is unclear from the record whether she has any residuals of that surgery. Regardless, for purposes of this decision, the Board will assume she does presently have a gynecological disorder. Consequently, the determinative issue is whether this condition is somehow attributable to her military service - and, in particular, to the treatment she received while in the military for the vaginal bleeding. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). And it is in this critical respect that her claim fails. The veteran's SMRs show she was hospitalized for 1-2 days for vaginal bleeding after sexual intercourse in June 1975. She was referred to a military gynecological clinic where she was diagnosed with a vaginal laceration with bleeding. She was given prescription cream to treat the laceration. Significantly, though, there were no further documented complaints, treatment, or diagnoses of a gynecological disorder during the remainder of her military service, although she now asserts that she experienced difficulties with her menstrual cycle after that treatment in service. Moreover, when she had her separation examination in March 1977, she did not report experiencing any further gynecological problems, and none were found on objective clinical examination. Thus, her SMRs, in particular her separation examination, do not reveal any chronic residual disability stemming from her one instance of treatment during service for the vaginal laceration and bleeding. Accordingly, her SMRs, as a whole, provide evidence against a finding of a chronic - as opposed to acute and transitory, gynecological disorder in service. 38 C.F.R. § 3.303(b); Savage, 10 Vet. App. 494-97. Furthermore, the evidence as a whole does not show continuity of symptomatology of a gynecological disorder since service. 38 C.F.R. § 3.303(b). In making this determination, the Board acknowledges the veteran's assertions regarding continuous menstrual cycle problems since her discharge from service. In this regard, she is indeed competent to report difficulties with her menstrual cycle from the time of her military service. Layno, 6 Vet. App. at 469. See also 38 C.F.R.§ 3.159(a)(2). But once evidence is determined to be competent, the Board must determine whether the evidence also is credible. The former, the Court has held, is a legal concept, which is useful in determining whether testimony may be heard and considered by the trier of fact, whereas the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Here, the veteran's lay contentions are outweighed by the other post- service evidence of record that, as a whole, indicates she did not have complaints or receive treatment for any gynecological problems until 1999. Private medical evidence dated in September 1999 from L.T., M.D., first shows difficulties with the veteran's menstrual cycle in June 1999, approximately 22 years after her military service had ended in June 1977. And although she asserts earlier difficulties with her menstrual cycle, during the intervening years dating back to when she was in the military, other earlier private treatment records dated from 1987 to 1996 are entirely unremarkable for any such complaints or treatment. The Federal Circuit Court has held that such a lengthy lapse of time between the alleged events in service and the initial manifestation of the subsequently reported symptoms and/or treatment is a factor for consideration in deciding a service-connection claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board affords the veteran's lay statements less probative weight in light of the lack of corroborating medical evidence upon discharge from service and for so many years thereafter. Simply put, her lay contentions regarding her symptomatology since service are outweighed by the available medical evidence. See generally Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). It follows that there is no basis to award service connection for a gynecological disorder based on chronicity in service or continuous symptoms thereafter. 38 C.F.R. § 3.303(b); Savage, 10 Vet. App. at 494-97. Moreover, there is simply no competent, medical evidence or opinion that in any way relates any current gynecological problems associated with the veteran's post-service hysterectomy to her period of active military service, including the one instance of a vaginal laceration during service. Boyer, 210 F.3d at 1353; Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). Absent this evidence of a nexus, service connection is not warranted. Neither the veteran nor her representative, without evidence showing that he or she has medical training or expertise, is competent to offer an opinion on medical etiology. See 38 C.F.R. § 3.159(a)(2); Jandreau, 492 F.3d at 1377; Grottveit, 5 Vet. App. at 93; Espiritu, 2 Vet. App. at 494. Concerning this, although the veteran is competent to discuss gynecological symptoms, neither she nor her representative can competently state that her 2001 hysterectomy is the result of symptoms she experienced or events that occurred decades earlier while she was in the military. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a hysterectomy, so there is no reasonable doubt to resolve in the veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER The claim for service connection for a hysterectomy is denied. REMAND Before addressing the merits of the left knee, left shoulder, and neck disorder claims, however, the Board finds that additional development of the evidence is required. First, the RO (AMC) should send the veteran a VCAA notice letter complying with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). This letter should specifically advise her that a downstream disability rating and an effective date will be assigned if these service-connection claims are eventually granted. Second, the veteran should be scheduled for a VA examination to obtain a medical opinion concerning the etiology of her current left knee, left shoulder, and neck disorders on the basis of in-service incurrence. See 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Under McLendon, in disability compensation (service connection) claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. Here, the veteran's SMRs reveal treatment for neck and shoulder pain after she was in a motor vehicle accident during a field exercise in March 1975. It was noted that she had whiplash from that accident. The diagnosis was a probable muscle strain. As for her left knee, the veteran's SMRs show she sustained trauma to this knee in a fall during service in December 1975. She was given an ace bandage to wear and told to limit her work for a short period. However, her March 1977 separation examination was unremarkable for any left knee, left shoulder, and neck complaints or disorders. Still, she maintains that she has experienced left knee, left shoulder, and neck pain ever since those incidents in service. Post-service, the veteran indicates that she was first treated for left knee, left shoulder, and neck pain soon after her June 1977 discharge by a private physician whose records, unfortunately, are unavailable. See personal hearing testimony at pages 8-10. So as it stands, the first medical evidence in the claims file revealing treatment for left knee, left shoulder, and neck pain is from private treatment records dated from 1987 to 1992, approximately 10- 15 years after the veteran was discharged from service. Nonetheless, there are several medical opinions suggesting a link between her current left knee, left shoulder, and neck disorders and the injuries she sustained during service. See August 2001 private examination report of L.T., M.D.; VA treatment records dated in November 2002, and in February and March 2003; and September 2004 private medical opinion of G.D., M.D. These nexus opinions are based on either an incomplete review of the claims file or solely on the reported history provided by the veteran, somewhat diminishing their probative value. See, e.g., Elkins v. Brown, 5 Vet. App. 474, 478 (1993). Furthermore, post-service private and SSA records document the veteran's employment history at the U.S. Postal Service, which involved heavy lifting, thus at least raising the possibility of intercurrent causes for her current disorders. In light of this evidence, especially the medical evidence suggesting a connection between these disorders and the veteran's military service, and the Court's recent decision in McLendon, a comprehensive VA medical examination and opinion is needed to determine whether her left knee, left shoulder, and neck disorders are traceable back to her military service. Accordingly, these claims are REMANDED for the following development and consideration: 1. Send the veteran a VCAA notice letter complying with the recent Court case of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Specifically, this letter must advise her that a downstream disability rating and an effective date will be assigned if her service connection claims are eventually granted. 2. Have the veteran undergo an appropriate VA examination to determine the nature and etiology of her current left knee, left shoulder, and neck disorders. She is hereby advised that failure to report for her scheduled VA examination, without good cause, may have adverse consequences on these claims. The examination should include any diagnostic testing or evaluation deemed necessary to determine the cause of these disorders. And the claims file must be made available for review of her pertinent medical and other history - including, in particular, the records of any relevant treatment and the August 2001 private examination report of L.T., M.D., the VA treatment records dated in November 2002, and in February and March 2003, and the September 2004 private medical opinion of G.D., M.D. all suggesting a correlation between the current left knee, left shoulder, and neck disorders and the injuries the veteran sustained while in the military. Based on a physical examination of the veteran and a comprehensive review of the claims file, the examiner is asked to indicate whether it is at least as likely as not (50 percent or more probable) that the veteran's current left knee, left shoulder, and neck disorders are directly related to her period of active military service from June 1974 to June 1977. In making this determination, the examiner's attention is specifically directed to the SMRs revealing treatment for neck and shoulder pain after the veteran was in a motor vehicle accident during a field exercise in March 1975 with a diagnosis of probable muscle strain. For her left knee disorder, the examiner's attention is specifically directed to SMRs revealing trauma to the left knee after a fall during service in December 1975. And, again, the examiner's attention is also directed to the post-service medical opinions suggesting a nexus between current left knee, left shoulder, and neck disorders and those injuries sustained during military service. See August 2001 private examination report of L.T., MD.; VA treatment records dated in November 2002, and in February and March 2003; and September 2004 private medical opinion of G.D., M.D. Finally, the examiner should comment on the likelihood the veteran's current disorders are due to post-service intercurrent causes, wholly unrelated to her military service. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should discuss the rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record. If the examiner is unable to provide the requested opinion, please expressly indicate this and discuss why this is not possible or feasible. 3. Then readjudicate the veteran's left knee, left shoulder, and neck disorder claims in light of any additional evidence received since the May 2007 SSOC. If these claims are not granted to her satisfaction, send her and her representative another SSOC and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. The veteran has the right to submit additional evidence and argument concerning the claims the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2007). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs