Citation Nr: 1307599 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 10-04 878 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for venereal warts. 2. Entitlement to service connection for Chlamydia. 3. Entitlement to service connection for bursitis of the bilateral hips. 4. Entitlement to service connection for shin splints. 5. Entitlement to service connection for arthritis of the neck. 6. Entitlement to service connection for depression. 7. Entitlement to service connection for substance abuse. 8. Entitlement to service connection for fibromyalgia. 9. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 10. Entitlement to service connection for service connection for a hiatal hernia. 11. Entitlement to service connection for service connection for irritable bowel syndrome. 12. Entitlement to service connection for service connection for a psychiatric disorder due to sexual trauma. 13. Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of an intrauterine device (IUD) placement. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from May 1987 to May 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in January 2013. A transcript of the hearing is in the Veteran's file. Following the hearing, the Veteran's representative submitted additional evidence with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304 (2012). The Veteran's claim of entitlement to service connection for posttraumatic stress disorder (PTSD) has been recharacterized as a claim of entitlement for a psychiatric disorder in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issues of entitlement to service connection for a hiatal hernia, irritable bowel syndrome, and a psychiatric disorder due to sexual trauma; and entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of an IUD replacement, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. There is no diagnosis of venereal warts, Chlamydia, bursitis of the bilateral hips, or shin splints. 2. At a hearing held in January 2013, prior to the promulgation of a decision in the appeal, the Veteran withdrew her appeal with respect to the issues of entitlement to service connection for arthritis of the neck, depression, substance abuse, fibromyalgia, and COPD. CONCLUSIONS OF LAW 1. The criteria for service connection for venereal warts have not been met. 38 U.S.C.A. §§ 1110, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection for Chlamydia have not been met. 38 U.S.C.A. §§ 1110, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 3. The criteria for service connection for bursitis of the bilateral hips have not been met. 38 U.S.C.A. §§ 1110, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 4. The criteria for service connection for shin splints have not been met. 38 U.S.C.A. §§ 1110, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 5. The criteria for withdrawal of an appeal have been met for the issue of entitlement to service connection for arthritis of the neck. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 6. The criteria for withdrawal of an appeal have been met for the issue of entitlement to service connection for depression. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 7. The criteria for withdrawal of an appeal have been met for the issue of entitlement to service connection for substance abuse. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 8. The criteria for withdrawal of an appeal have been met for the issue of entitlement to service connection for fibromyalgia. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 9. The criteria for withdrawal of an appeal have been met for the issue of entitlement to service connection for COPD. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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. Letters sent in October 2008 and January 2009 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of a disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. 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). The Veteran's service treatment records are missing, and all efforts to obtain them have been unsuccessful. A formal finding was issued in March 2009, and the Veteran was notified that her records were missing. Where service records are unavailable, VA has a heightened obligation to assist the Veteran in the development of the claim. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The Veteran's VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that she is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). The Veteran was not afforded a VA examination to evaluate her claimed disabilities of venereal warts, Chlamydia, and shin splints. However, as there is no current diagnosis of these disorders and no lay testimony describing current symptoms of these disorders; an examination is not necessary. With respect to the claimed bursitis of the bilateral hips, the Veteran has not reported a continuity of hip pain symptomatology since service, and there is no indication that this disability may be linked to active service. No examination is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances when a VA examination is required). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); see also Dingess/Hartman, 19 Vet. App. at 486. Service Connection The Veteran seeks service connection for venereal warts, Chlamydia, bursitis of the bilateral hips, and shin splints. Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d). To establish service connection, there must be competent evidence of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The nexus between service and the current disability can be satisfied by competent evidence of continuity of symptomatology and 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). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 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, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's service treatment records are unavailable. Post-service VA treatment records do not reflect current diagnoses of the claimed disabilities. Numerous gynecological examinations, conducted periodically throughout the course of the appeal, have all been negative for venereal warts and Chlamydia. The records also are negative for any complaints of shin pain or diagnoses of shin splints. The Veteran is shown to have complained of bilateral hip pain; however VA medical personnel determined that the pain was related to a diagnosis of fibromyalgia. The Veteran has withdrawn her pending claim of entitlement to service connection for fibromyalgia and there is no diagnosis of bursitis affecting the bilateral hips in the treatment records. In a November 2008 statement, the Veteran indicated that she began having hip problems in service "like bursitis." She also reported having shin splints. During a hearing held in January 2013, the Veteran testified that she was treated in service for venereal warts and Chlamydia; however, she also testified that she did not currently have Chlamydia or venereal warts. No testimony was presented with respect to the disabilities of bursitis of the bilateral hips and shin splints. The Veteran was not afforded a VA examination to evaluate these disabilities. However, as there is no current diagnosis of the Chlamydia, venereal warts, and shin splints; and no lay testimony describing current symptoms of these disorders; an examination is not necessary. In the absence of a current disability, service connection cannot be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Current complaints of hip pain have been diagnosed as fibromyalgia; there is no diagnosis of bursitis in the record. The Veteran has not reported a continuity of hip pain symptomatology since service, and there is no indication that this disability may be linked to active service. The preponderance of the evidence is against the claims of service connection, there is no doubt to be resolved; and service connection is not warranted for venereal warts, Chlamydia, bursitis of the bilateral hips, and shin splints.. Withdrawn Issues The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. In January 2013, the Veteran testified at her Board hearing that she was withdrawing the appeal with respect to the issues of entitlement to service connection for arthritis of the neck, depression, substance abuse, fibromyalgia and COPD. As such, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of those issues, and they are dismissed. ORDER Entitlement to service connection for venereal warts is denied. Entitlement to service connection for Chlamydia is denied. Entitlement to service connection for bursitis of the bilateral hips is denied. Entitlement to service connection for shin splints is denied. Entitlement to service connection for arthritis of the neck is dismissed. Entitlement to service connection for depression is dismissed. Entitlement to service connection for substance abuse is dismissed. Entitlement to service connection for fibromyalgia is dismissed. Entitlement to service connection for COPD is dismissed. REMAND The Veteran seeks service connection for a hiatal hernia and irritable bowel syndrome (IBS). Her service treatment records are unavailable, but she has competently and credibly reported that she was diagnosed with these disabilities in service. The post-service VA treatment records reflect diagnoses of hiatal hernia and IBS, but these diagnoses were not linked to the Veteran's active service. The Veteran has testified that the symptoms she currently experiences due to her hiatal hernia and IBS are the same as the symptoms she experienced in service. A medical opinion is needed to determine whether the current diagnoses of hiatal hernia and IBS are etiologically related to military service. The Veteran also seeks service connection for a psychiatric disorder, to include PTSD, due to military sexual trauma. She avers that she was sexually assaulted by a classmate in 1987 after a night of drinking and partying. She denies any specific recollection of the assault other than waking up next to this classmate partially clothed. She reports that within days after the incident, she was diagnosed with two sexually transmitted diseases and experienced behavioral changes. VA treatment records show the Veteran has also reported a history of sexual assault prior to and after military service. The records reflect a diagnosis of PTSD based on military sexual assault (which was rendered by a social worker, and without review of the claims file), in addition to other psychiatric diagnoses such as adjustment disorder, substance abuse disorder, mood disorder and depression. An examination is needed to determine whether the Veteran meets the criteria for a diagnosis of PTSD, and, if so, to specify the stressors supporting the diagnosis. In addition, an opinion is needed to determine whether there is evidence of behavior changes following the claimed stressor and, whether any other psychiatric disability was incurred as a result of active duty. Finally, the Veteran seeks compensation under 38 U.S.C.A. § 1151 for residuals of an IUD placement in May 2007, at the VA Medical Center (VAMC) in Augusta, Georgia. She avers that she sustained psychological trauma during this procedure for two reasons. First, she reports that she experienced extreme pain during the IUD placement. Second, she reports that, shortly after procedure began, the "uterine sound" was dropped, causing the doctor and nurse to halt the procedure in order to locate a new one. She avers that she was left alone with the male doctor, exposed and with a speculum inside of her, for 10-15 minutes before a new uterine sound could be located. In December 2008, an attending gynecologist at the Augusta VAMC provided a medical opinion that the Veteran received the degree of care expected of a reasonable health care provider, and no action or event occurred that would cause additional disability. This opinion does not adequately address whether: 1) the Veteran actually has an additional psychiatric disability as a result of the IUD placement procedure, and if so, what the nature of that additional disability is; and 2) whether the additional psychiatric disability, if any, was due to an event not reasonably foreseeable. Whether the proximate cause of a Veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable, but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). The Board cannot make its own medical determinations and must rely on competent evidence from a medical professional. A remand is necessary to obtain a medical opinion as to whether there are any psychiatric residuals, and if so, whether those residuals were due to VA fault or were not reasonably foreseeable. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and her representative and request that they provide sufficient information, and if necessary, authorization, to enable the RO to obtain any additional evidence pertinent to the claims on appeal. After securing the necessary authorizations for release of this information, obtain copies of all records referred to by the Veteran not already of record, including any pertinent VA treatment records dated since January 2013. Any negative response must be in writing and associated with the claims file 2. Schedule the Veteran for VA gastrointestinal examination by an appropriate medical professional. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is to provide an opinion as to whether the Veteran's diagnosed hiatal hernia or any residuals thereof, and/or IBS are at least as likely as not (a 50 percent or greater probability) related to service. In doing so, the examiner is to accept as fact the Veteran's lay testimony of being diagnosed with a hiatal hernia and IBS in service. 3. Schedule the Veteran for VA psychiatric examination by an appropriate medical professional. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that a psychiatric disorder, to include PTSD, is related to an alleged sexual assault in service. If the Veteran does not meet the criteria for a diagnosis of PTSD, the examiner is to explain which of the criteria are not met. If the Veteran meets the PTSD criteria, the examiner must specify the stressor supporting the diagnosis. If the supporting stressor consists of an in-service sexual assault, the examiner must provide an opinion as to whether there is evidence of behavior changes in response to the stressor. 4. Arrange for a medical expert opinion with an appropriate medical professional at a hospital other than the Augusta, Georgia, VAMC for an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has a psychiatric disorder that was caused by her IUD placement. If she has a psychiatric disorder that was caused by her May 2007 IUD placement, state whether this additional disability was due to: a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the IUD; or b) an event that was not reasonably foreseeable. All of the examination reports must include a complete rationale for all opinions expressed. If any of the examiners feel that the requested opinions cannot be rendered without resorting to speculation, the examiners must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and her representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs