Citation Nr: 1039144 Decision Date: 10/19/10 Archive Date: 10/22/10 DOCKET NO. 05-14 296A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for polycystic ovarian disease (PCOD). 2. Entitlement to service connection for removal of the gallbladder, to include as secondary to PCOD surgery. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran's active military service extended from March 1993 to February 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which in part denied service connection for the disabilities indicated above. In November 2006, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge. A transcript of his testimony is associated with the claims file. The case was previously before the Board in March 2007 and September 2009, when it was remanded for additional development, including examination of the Veteran and medical opinions. The requested development has been completed. The issue of entitlement to service connection for posttraumatic stress disorder (PTSD) has been raised in a written statement dated August 2008, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Available service treatment records do not reveal any complaints, or diagnosis, of polycystic ovarian disease during active military service. 2. Available service treatment records reveal the Veteran had a laparoscopic cystecomy for a paratubal cyst in September 1993; no post-operative complications were noted. 3. VA treatment records dated in 2005 reveal diagnoses of PCOD. 4. The competent medical evidence of record indicates that the Veteran's PCOD did not manifest during service, and is unrelated to the laparoscopic cystecomy for a paratubal cyst during service. 5. The competent medical evidence of record indicates that the Veteran's post-service gallbladder removal is unrelated to the laparoscopic cystecomy for a paratubal cyst during service. CONCLUSIONS OF LAW 1. The criteria for service connection for polycystic ovarian syndrome are not met. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). 2. The criteria for service connection for removal of the gallbladder are not met. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Initial Matters Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letters to the Veteran dated May 2002 and May 2003. This notice substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim, the relative duties of VA and the claimant to obtain evidence. A letter dated July 2006 provided additional notice and complied with the requirements of Quartuccio supra, and the requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claims were subsequently readjudicated in Supplemental Statements of the Case dated August 2009 and August 2010. In any event, the appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained the available service treatment records, private treatment records, and VA treatment records. VA has also assisted the appellant in obtaining evidence, and afforded her the opportunity to present written statements and evidence. In October 2007 and May 2010, the Veteran was accorded VA Compensation and Pension examinations with respect to her claims for service connection. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision at this time. The Veteran served on active duty from March 1993 to February 1994. VA has managed to obtain only an incomplete amount of the Veteran's service treatment records. Her personal service treatment records were obtained but do not contain entrance or separation examination reports. These records only contain a few treatment notes. Review of the claims file reveals that the Veteran previously moved between the jurisdictions of two VA ROs and there are indications that at that point a rebuilt claims file was required. The Veteran has indicated that she underwent surgery in September 1993 at an Army Hospital. Several attempts have been made to retrieve the hospital and surgical records. The appropriate controlling agency has responded that these records are unavailable and cannot be found. The Veteran has been informed. VA's duty to assist is heightened when records are in the control of a government agency. Gobber v. Derwinski, 2 Vet. App. 470 (1992). VA has a heightened obligation to search for alternate medical records when service medical records are not available and must also provide an explanation to the veteran regarding VA's inability to obtain his service medical records. Dixon v. Derwinski, 3 Vet. App. 261 (1992). VA has exhausted attempts to obtain complete copies of the Veteran's service treatment records, including surgical and hospital records. All available records have been obtained. The Veteran has also provided medical release forms with respect to post-service treatment. Specifically, she claims that she had gallbladder removal surgery in 1996 at Ben Taub Hospital. VA requested the Veteran's records from this hospital for the period from 1996 to 2001. Records dated from 1997 to 1999 were supplied; none of which reflect gallbladder removal surgery. The Veteran was informed that these were the only records obtained. She has not provided any additional records. II. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may 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). When a chronic disease identity is established in service, then a showing of continuity after discharge is not required. Continuity of symptomatology is required only where the condition noted during service (or in a presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). The nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). A. Polycystic Ovarian Disease The Veteran asserts that she warrants service connection for PCOD. In November 2006, she presented sworn testimony at a hearing before the undersigned Veterans Law Judge. Her testimony sets forth her basic claims. She testified that the in-service surgery was because "the broad ligament was ripped," not for a cyst. She also testified that she was diagnosed with PCOD in service and that she was prescribed "pills to regulate hormones" as treatment. She also indicated that this diagnosis was made as a result of the in-service laparoscopic surgery. The available service treatment records do not reveal any diagnosis of PCOD. Two service treatment records related to the Veteran's claim have been obtained. The first is a Patient Discharge Instructions sheet dated September 10, 1993. This record indicates that the Veteran had "operative laparoscopy with cystectomy. The discharge diagnosis was "paratubal cyst." An OB/GYN clinic record dated September 11, 1993 reveals that she was seen for a follow-up evaluation following surgery the day before. This record states that the Veteran had a "laparoscopic cystecomy" for a "paratubal cyst." Some occasional positional pain was noted. The assessment was "postop cystectomy doing well." Despite the Veteran's assertions that the laparoscopic surgery during service was for a damaged "ligament," the available service treatment records clearly indicate that the Veteran's surgery was to remove a paratubal cyst. VA outpatient treatment records dated in 2005 and 2006 indicate diagnoses of PCOD. Most of these records indicate the diagnosis by history. The medical evidence of record does not contain any records from the initial diagnosis of PCOD. Rather, the diagnoses of record appear to be based upon the Veteran's providing the history to treating medical personnel. The private medical records that she has identified, and which have been obtained by VA, do not show any diagnosis of PCOD. In October 2007, a VA Compensation and Pension examination of the Veteran was conducted. She reported her history of in-service laparoscopic surgery. She specifically asserted that an artery was cut during this surgery and her belief that her liver and gallbladder were infected at this time. She also reported that she had her gallbladder removed at Methodist Hospital in 1996. This contradicts the medical release forms she has executed indicating gallbladder removal in 1996 was at Ben Taub Hospital. The impression was "history of laparotomy with adnexal cyst removal [during service] in 1993 and history of gallbladder removal [after service] in 1996 secondary to cholecystitis. There is no evidence that the cholecystectomy is associated with the cyst removal." A November 2007 addendum to the examination report indicated that the available service treatment records reveals that the in-service laparoscopy in 1993 was consistent with a paratubal cyst and the post-operative course was uncomplicated. In May 2010, another VA Compensation and Pension examination of the Veteran was conducted. All available medical evidence was reviewed. The Veteran reported a medical history similar to that noted in the prior examination report. She did not indicate any specific post-surgical complications of symptoms. The examining physician noted that there was "no evidence of recorded workup of polycystic ovarian syndrome or confirmatory evidence of this diagnosis." The examiner's opinion was that the Veteran's PCOD, if it presently exists, is not related to the cyst removed during service. In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); see also Pond v. West, 12 Vet. App. 341, 345 (2000) (Observing that in case where the claimant was also a physician, and therefore a medical expert, the Board could consider the appellant's own personal interest); citing Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that while interest in the outcome of a proceeding "may affect the credibility of testimony it does not affect competency to testify." (citations omitted). A hearing officer may properly consider the demeanor of the witness, the facial plausibility of the testimony, and the consistency of the witness' testimony with other testimony and affidavits submitted on behalf of the veteran. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The evidence is against the Veteran's claim for service connection for PCOD. The available service treatment records do not show any diagnosis of this disability during service. Post- service medical records dating from 2005, over a decade after the Veteran separated from service do show diagnoses of PCOD, but these appear to be based solely upon history provided by the Veteran. No medical evidence showing the initial evaluation and diagnosis for PCOD have been submitted or obtained. To the extent that the Veteran actually has PCOD, the only competent medical evidence of record indicates that it is not related to the paratubal cyst diagnosed during service or the surgery conducted during service to remove said cyst. Accordingly, the preponderance of the evidence is against the claim for service connection for a polycystic ovarian disease. There is no doubt to be resolved and service connection is not warranted. B. Gallbladder Removal This claim was initially characterized and adjudicated as "entitlement to service connection for removal of gallbladder secondary to polycystic ovarian surgery." As noted above, the Veteran's in-service laparoscopic surgery was not specifically for PCOD, but rather for removal of a paratubal cyst. While the diagnosis of the underlying disorder requiring the surgery is different, the fact is that laparoscopic surgery of the Veteran was conducted during service. She claims that during this in- service surgery her liver and gallbladder were infected resulting in the need to remove her gallbladder after service in 1996. At her 2006 hearing before the Board the Veteran testified that she believed that the 1993 in-service laparoscopic surgery resulted in scarring and infection of her gallbladder and liver. A June 1997 VA mental health treatment record notes that the Veteran reports that she had recently had emergency gallbladder removal surgery. VA has obtained private medical records from the two hospitals that the Veteran has indicated, at different times, were the locations of her post-service gallbladder removal surgery. None of the records obtained relate to gallbladder removal surgery. In May 2010, a VA Compensation and Pension examination of the Veteran was conducted. All available medical evidence was reviewed. The Veteran reported a medical history of her in- service laparoscopic surgery. She did not indicate her knowledge of any infection of damage at the time of the surgery. She reported gallbladder removal two years after service in 1996 as a result of a severe attack of acute cholecystitis. The examiner did indicate that laparoscopic surgery could cause damage to the intestine or adjacent organs. However, the physician indicated that such damage did not happen with the Veteran's in-service surgery. The physician noted that the Veteran was not told of any complications and that any damage would have resulted in immediate abdominal symptoms which the Veteran did not report. Moreover, available service treatment records show that the Veteran was discharged the same day as surgery, and follow-up records do not reveal complications. Based on this evidence, the examining physician's opinion was that the Veteran's gallbladder was not damaged during the 1993 surgery and that the subsequent removal of the gallbladder was not related to service or the in- service surgery. The evidence is against the Veteran's claim for service connection for removal of the gallbladder. The medical evidence of record does not establish that post-service removal of the Veteran's gallbladder is related to service or the surgery conducted during service. Accordingly, the preponderance of the evidence is against the claim. There is no doubt to be resolved and service connection is not warranted. ORDER Service connection for polycystic ovarian disease is denied. Service connection for removal of the gallbladder is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs