Citation Nr: 1301495 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 05-38 869 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a gynecological disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from November 1988 to June 1989. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In January 2009 the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. FINDING OF FACT The evidence of record is in equipoise regarding whether the Veteran's current gynecological disability is related to active service. CONCLUSION OF LAW A gynecological disability was incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to service connection for a gynecological disability, which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist is necessary. Legal Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability benefits. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, 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. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran contends that service connection is warranted for a gynecological disability because it had its onset in service. At the Travel Board hearing the Veteran testified that she was diagnosed with fibroid tumors in service. She further testified that she was treated multiple times in service and was put on birth control pills in order to control the bleeding that goes along with some fibroid tumors. The Veteran indicated that at the service separation examination she reported her gynecological complaints. She also indicated that the fibroid tumors began to grow from a small size to a larger size over time after service and she ended up requiring a hysterectomy. The service treatment records do not reflect that the Veteran was diagnosed with fibroid tumors or any other gynecological disability during service. A May 1987 ROTC student physical examination revealed that pelvic examination was normal and there were no gynecological complaints or findings. An undated service treatment record reflects that the Veteran had regular menses. The Veteran was reported to be 24 years old at the time. Based upon the Veteran's birthdate, the service treatment record is presumably dated between May 1989 and April 1990. A February 1990 service treatment record notes that the Veteran complained of pain in her lower abdomen on the right side for two days. There was a question as to whether the Veteran was pregnant. The assessment was rule out appendicitis. No follow-up service treatment records are in the claims file. The claims file also does not contain a service separation examination report or separation report of medical history. The Veteran underwent a VA examination in July 2012. The report of that examination notes that Veteran's claims file was reviewed. The Veteran indicated that in late 1988 or early 1989 she noticed that her periods had become longer, heavier, and more painful, such that she could not really function. Birth control pills made the periods not as long, not as heavy, and less painful. She stated that she was evaluated during active duty and an ultrasound revealed small fibroids that were not problematic at that time. She was told that the fibroids just needed to be observed in order to ensure that they did not get worse. She reported occasional dyspareunia and occasional postcoital bleeding during that time frame. She had three children, one in 1991, another in 1995 and a third in 2001. Later on she developed much worse, painful and longer, heavier periods. She would bleed constantly and as a result, she became severely anemic. A pelvic ultrasound in 2008 showed fibroids and ovarian cysts. Endometrial biopsy showed disordered proliferative endometrium but no cancer. In October 2008 the Veteran underwent a total abdominal hysterectomy and had four units of blood transfused. Pathology report revealed 10 fibroid nodules inside of the uterus. The diagnosis was menorrhagia. Cysts found on the ovaries were determined to be simple and benign; therefore, they were not removed. Gradually the Veteran healed and no complications ensued. She has had no problems since the hysterectomy. However, a new issue developed subsequently (several months later) in that she developed stress urinary incontinence. The diagnoses were menometrorrhagia, dysmenorrhea, leiomyoma uteri, hysterectomy, and stress urinary incontinence. The VA examiner opined, assuming that the Veteran is credible in her statement that she was diagnosed with small fibroids during her active duty service, that the continued menometrorrhagia, dysmenorrhea, etc., and then anemia were at least as likely as not related to the diagnosis made during her active duty service. The examiner reasoned that fibroids do grow slowly initially, that birth control pills will slow down their growth, but that they do not completely stop their growth. Over time, the fibroids will get worse and will reach a critical mass and become severe, which is what happened for this Veteran. The examiner further opined that the current stress urinary incontinence has nothing to do with the Veteran's active duty. Instead, it is a subsequent development which is totally remote and should not be considered part of the original disability. The Board acknowledges that the Veteran's service treatment records are silent regarding any complaints, treatment, or diagnosis of a gynecological disability. However, the lack of medical evidence does not cause the Veteran's testimony to be discredited. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding that the lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that "Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The Veteran is certainly competent to testify as to symptoms of bleeding and abdominal pain during service and after service. Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature). Additionally, although the date appears to be off from what the Veteran now asserts (she states that the problems began in late 1988 or early 1989), there is a service treatment record dated in February 1990 which indicates complaints of abdominal pain. Although it does not reflect any gynecological findings, it does not contain a firm diagnosis and no follow-up treatment records are available, to include the service separation examination. Moreover, the July 2012 VA examiner essentially corroborated the Veteran's lay assertions of chronology of symptomatology with medical facts. Specifically, the examiner found that fibroids do grow slowly as in the Veteran's case, birth control pills are used to slow the growth of the fibroids as the Veteran has asserted she was prescribed for her fibroids, and fibroids do ultimately grow to critical mass, becoming severe, like in the Veteran's case. Based on the Veteran's competent and credible testimony and the July 2012 VA examination report, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's gynecological disability began during service. The Veteran filed her claim in March 2005. The rating decision initially denying service connection for a gynecological disability was issued in August 2005. Although the July 2012 VA examiner noted that since her October 2008 hysterectomy, the Veteran has no pain, dyspareunia, or postcoital bleding, the diagnoses were continuing menometrorrhagia, dysmenorrheal, leiomyoma uteri, hysterectomy, and stress urinary incontinence. The examiner specifically found that the stress urinary incontinence was not related to service or any of the underlying gynecological disabilities. However, the examiner also found that the continued menometrorrhagia, dysmenorrheal, etc., and then anemia were at least as likely as not related to the Veteran's active service. In any event, the Board finds that the Veteran has a current diagnosis of continued menometrorrhagia, dysmenorrheal, etc. which is etiologically related to service, and as such, service connection is warranted. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (clarifying that the requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). As the Veteran's gynecological disability began during service and she has a diagnosis of a currently gynecological disability during the period of the claim, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for a gynecological disability is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a gynecological disability is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs