Citation Nr: 1233294 Decision Date: 09/26/12 Archive Date: 10/09/12 DOCKET NO. 08-11 383 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to service connection for an obstetric/gynecological (OB/GYN) disorder, to include a human papilloma virus (HPV) infection. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from October 1989 to August 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by which the RO, in pertinent part, denied service connection for vaginitis (claimed as OB/GYN condition). The Veteran initially claimed entitlement to service connection for an OB/GYN condition. A review of the post-service medical evidence reveals that the gynecological disorder treated was HPV. For the sake of clarity, the Board has recharacterized the issue on appeal. In May 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. FINDINGS OF FACT 1. The Veteran sustained an HPV infection in service. 2. Symptoms of an HPV infection were not chronic in service. 3. Symptoms of an HPV infection were not continuous after service separation. 4. The Veteran's an HPV infection is etiologically related to service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for an HPV infection are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The claim of service connection for an OB/GYN disorder, to include an HPV infection, has been considered with respect to VA's duties to notify and assist. Given the favorable outcome noted above, no conceivable prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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. 38 C.F.R. § 3.303(b). 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) 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. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on a veteran's behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection for an OB/GYN Condition, to Include an HPV Infection The Veteran asserts that she suffers from a current OB/GYN condition that is related to gynecological conditions for which she received medical treatment in service. In order for service connection to be granted, a present disability must be shown. Brammer, supra. That requirement is satisfied if there is a current disability upon filing of the claim even if the condition in question is resolved by the time the claim is adjudicated. See McLain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication). After a review of all the evidence, the Board first finds that the Veteran has had an HPV infection during the pendency of this appeal. The Veteran filed her claim of service connection in July 2006, just before service separation. An HPV infection was identified in February 2007, and it was treated on several occasions until April 2010. Hence, a current disability was shown during the pendency of this appeal. For this reason, the Board finds that the requirement for a current disability is met. Id.; Brammer, supra. The Board now addresses other gynecologic conditions raised by the record and whether any of them constitute current disabilities. The service treatment records refer to clinical vaginitis/vulvitis in October 1990. In August 1993, trichomonal vaginitis was found. There were several findings of bacterial vaginosis, the last being in June 2006. On the question of current disability, on VA examination in December 2009, the Veteran reported a diagnosis of chronic vaginitis since 1991. Because the Veteran declined a pelvic examination, the examiner rendered no diagnosis with respect to the Veteran's claimed chronic vaginitis, as there was no pathology upon which to base a diagnosis. Based on this evidence, the Board inquired as to whether the Veteran had any other current diagnosable disability that was residual to clinical vaginitis/vulvitis, trichomonal vaginitis, and/or bacterial vaginosis diagnosed in service by requesting a medical opinion. On the question of current disability, in a July 2012 medical opinion sought by the Board, the reviewing physician asserted that, based on her review of the claims file, there was no current diagnosable disability that was residual to the clinical vaginitis/vulvitis, trichomonal vaginitis, and/or bacterial vaginosis diagnosed in service. Based on this evidence, including diagnoses and medical opinions as to current disability, the Board finds that the weight of the evidence demonstrates no current OB/GYN disability other than an HPV infection. For this reason, service connection is not warranted for any OB/GYN disorder other than HPV infection. On the question of relationship of current HPV infection to service, the Board finds that the Veteran acquired an HPV infection in service. The service treatment records indicate that there was an abnormal Papanicolaou test (PAP smear) early in the Veteran's service, as indicated in an October 1993 treatment note. Following the October 1993 notation of an abnormal PAP smear, all other in-service PAP smears were negative for abnormalities. The last in-service PAP smear, which revealed no abnormalities, was conducted in June 2005. Following service, in February 2007, a PAP smear indicated an HPV infection with a low grade squamous intraepithelial lesion. An April 2007 biopsy confirmed mild dysplasia. In February 2008, the Veteran was again found positive for HPV, but an April 2008 biopsy was benign. In December 2008, the Veteran was again diagnosed with a low grade squamous intraepithelial lesion due to HPV. A November 2010 treatment note indicated persistent cervical intraepithelial neoplasia (CIN) I until April 2010, when the Veteran underwent a loop electrosurgical excision procedure (LEEP). In June 2012, the Board sought a medical opinion regarding whether the Veteran's HPV had its onset in service. The July 2012 reviewing VHA examiner, who reviewed the record in its entirety, opined that it was at least as likely as not that the Veteran contracted an HPV infection, first diagnosed after service in February 2007, while still on active duty. The VHA examiner explained that the cellular changes produced by HPV generally occurred two to eight months after infection. Based on this incubation period, the VHA examiner reasoned that abnormal PAP smear six months after separation could have resulted from an in-service HPV infection. Such medical opinion evidence, by its own language of at least as likely as not, as well as explanation that the current HPV could have resulted from the in-service HPV, places in equipoise the competent evidence on the question of whether the Veteran's currently diagnosed HPV infection is related to service or had its onset in service. The Board finds that the July 2012 VHA opinion is competent, as it was rendered by a physician, who is also a gynecologist. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). It is also probative of the matter at hand because the physician reviewed the pertinent documents in the claims file, and explained the basis for her conclusions in detail. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008); Prejean, 13 Vet. App. at 448-9 (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). The record contains no other competent medical opinion on the origins of the Veteran's HPV infection, first identified some six months after service separation. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's HPV infection, which diagnosed six months after service separation, is related to service, so that service connection is warranted for an HPV infection. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.303. ORDER Service connection for an HPV infection is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs