Citation Nr: 1309911 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 09-26 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a cervical uterine condition, to include cysts and tumors. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from February 1982 to February 1986. This matter comes before the Board of Veterans' Appeals (Board) from a December 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal, except as otherwise stated herein. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). A review of the Veteran's service treatment records (STRs) during service in the reserves, and following her verified period of active duty, suggests that while stationed in Japan it was found that she might have, and was evaluated for, Graves disease (hyperthyroidism). The Veteran's formal claim in May 2007 does not state that she was claiming service connection for hyperthyroidism but VA treatment records, in CAPRI within Virtual VA, indicate that she now has or may have hyperthyroidism. Thus, the matter of whether the Veteran may wish to claim service connection for hyperthyroidism is referred to the RO for clarification. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran's DD 214 shows that she had no active duty prior to her verified active duty in the U.S. Navy from February 1982 to February 1986. Upon discharge from that period of active duty in February 1986 she was transferred to the Naval Reserve and her obligation to serve in the reserves was to terminate in August 1987. The service treatment records (STRs) of the Veteran's active duty show that on enlistment examination in July 1981 she had no definite pelvic abnormality. In a summary it was noted that a letter from a private physician indicated that a vaginal cyst had been found on examination in December 1980 (however, no such letter is contained within the STRs). In an adjunct medical history questionnaire it was reported that she had or had had a cyst. She had been treated for a "female" disorder. It was noted that she had been found to have a vaginal cyst in December 1980 but that no treatment had been advised. In an undated "Report of Medical Examination/Treatment" the Veteran gave authorization to release records of her treatment, without hospitalization, by a Dr. R. H. B., Jr., from November 17, 1980, to February 10, 1981. The reported diagnosis had been a vaginal cyst, in the left portion. The address of that physician was listed as "#6, Medical Center, Lynchburg", Virginia 24501. In a similar record dated in July 1981 she gave authorization to release records of her treatment, without hospitalization, by a Dr. L. in July and August 1981. As to the diagnosis it was reported that she had "Good Health." The address of that physician was listed as "Amherst, University 24521." However, records from those two physicians are not on file. The Veteran was evaluated at a military hospital for one day in September 1981 (apparently, while in the reserves) and underwent a diagnostic laparoscopy, because she had been unsuccessful at conception. The discharge diagnosis was a small uterine fibroid of 2 to 3 centimeters. In April 1982 it was noted that the September 1981 laparoscopy had found a fundal fibroid. On a January 1986 examination for expiration of enlistment a pelvic examination of the Veteran was normal. STRs from the military reserves shows that the Veteran was seen at a military clinic in Japan in August 1987, at which time it was noted that on her last examination there had been found a left adnexal mass. Also while in the reserves she was evaluated for infertility. In September 1991 she underwent diagnostic laparoscopy with "chromopertubation." This revealed two fundal fibroids, each about 2 to 3 cms., and relatively small fibroids of the fundus. The tubes and ovaries were normal, bilaterally, and there was no evidence of adhesions or endometriosis. A pelvic sonography in March 1993 revealed the Veteran's uterus was normal in size. There were at least two small hypoechoic circumscribed foci contained within the myometrium. One was situated posteriorly on the left, in the lower uterine body, and was about 2.5 cms. in diameter. The second lesion was in the uterine fundus, on the right, and was about 3.5 cms. in diameter. The findings were typical for uterine leiomyomata, although other uterine pathology, e.g., malignancy, could not be ruled out. Her ovaries were normal in size and echo texture, bilaterally. The impression was circumscribed hypoechoic masses in the uterine body, most consistent with uterine leiomyomata. In this regard, the Board notes that a leiomyoma is a benign tumor derived from smooth muscle, most commonly of the uterus, and also called a fibroid. A leiomyoma uteri is a leiomyoma of the uterus, usually occurring in the third and fourth decades, characterized by the development, most commonly within the myometrium, of multiple, sharply circumscribed, unencapsulated, gray-white tumors, which are firm, usually round, and show a whorled patter on cut section. It is also called fibromyoma uteri, myoma previum, and colloquially as fibroids. DORLAND'S ILLUSTRATED DICTIONARY, 27th Edition, page 906. STRs during the Veteran's time in the military reserves also show that in March 1993, when seen at Tripler Army Medical Center, Grave's disease was diagnosed. In April 1993 it was indicated that the Veteran had multi-factorial infertility, and the factors included Graves's disease and small uterine fibroids. The December 2007 rating decision which is appealed stated that the notice given to the Veteran in August 2007, as to how to substantiate her claim and informing her of the respective duties in developing information and evidence (pursuant to the Veterans Claims Assistance Act of 2000 (VCAA)), had asked her to submit evidence of treatment for cervical or uterus condition to include cysts and tumors from military service to the present time. However, it does not appear that the Veteran was specifically asked to obtain or assist VA in obtaining records of treatment by two private physicians in 1980 and 1981, prior to her active service. The December 2007 rating decision concluded that the Veteran's vaginal cyst had existed prior to her active duty and there is no medical evidence to show treatment for a chronic cervical or uterus condition to include cysts and tumors while on active duty, or to show that the preexisting vaginal cysts were aggravated or permanently worsened as a result of active military service. Private clinical records show that the Veteran was treated and evaluated for gynecological problems from 1997 to 2005. In November 1997 ultrasound findings revealed that she had an enlarged fibroid uterus, with too many fibroids to measure. The largest was in the funds. The left ovary could not be visualized. The summary was an enlarged fibroid uterus with the largest fibroid in the fundus and multiple fibroids throughout the uterus. VA treatment records in VA's CAPRI system from February 2009 to April 2012 contained within Virtual VA show that in May 2009 the assessments included fibroid uterus - menorrhagia. Records of the VA Salem Women's Health Clinic in November 2009 show that on examination it was noted that an August 2009 pelvic ultrasound, to monitor the Veteran's uterine fibroids, had found that her endometrial stripe was 5 mms. Also, it was noted that she had been menopausal for 2 years and stated that her fibroids were not causing her discomfort at the current time. In VA Form 21-4138, Statement in Support of Claim, in May 2011 the Veteran stated that she had had ovarian cysts prior to service but developed fibroid tumors during service. Also, a VA physician at Salem, VA Medical Center (VAMC) had told her that there was a difference between a cyst and a tumor. She desired that her current records from Salem, VAMC, be used in support of her appeal. The April 2012 Supplemental Statement of the Case (SSOC) noted that the VA treatment records had been reviewed and also considered her statement that there is a difference between a cyst and fibroid tumors, and this was acknowledged. However, while the recent [VA] treatment records showed periodic gynecological treatment, there was no recent treatment for a cyst or fibroid tumors. It was concluded that there was no evidence that related her fibroid tumors to her military service that ended in 1986 or that established a worsening of her cyst during military service. In the March 2013 Informal Hearing Presentation the Veteran's service representative stated that while the Veteran was provided VCAA notice as to a claim for compensation based on direct service connection, it was requested that she be provided VCAA notice with respect service connection based on aggravation. Also, it was requested that the case be remanded to afford the Veteran a VA nexus examination in support of her claim. With respect to notice as to substantiating a claim based on inservice aggravation of a pre-existing disability, the Board notes that in addressing the question of whether a disability that pre-existed service was, in fact, aggravated during service, the evidentiary burdens between VA and the claimant vary according to whether the disability was found on the examination for entrance into active service. Veterans are presumed to be in sound condition when examined for entrance into active service. 3 38 U.S.C. § 1111; see also 38 C.F.R. § 3.304(b) (2012) (the implementing regulation. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). A history of preservice existence of conditions recorded at the time of an entrance examination does not constitute notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). When a preexisting condition is noted at service entrance, the presumption of soundness is not applicable and the claim is not for direct service incurrence, but for service-connected aggravation. Wagner v Principi, 370 F3d. 1089, 1096 (Fed. Cir. 2004). Under this particular circumstance, the provisions of 38 U.S.C.A. § 1153 are for application, and the burden falls on the Veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994); Wagner v Principi, 370 F3d. at 1096. Under 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306(a), aggravation will be established by an increase in disability during service, absent a specific finding that increase was due the natural progression of the disease. See also 38 C.F.R. § 3.306(a) (2011). This standard is further explained in 38 C.F.R. § 3.306(b), which provides that clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. In other words, if the presumption of aggravation arises, the burden shifts to the government to rebut the presumption of in-service aggravation by clear and unmistakable evidence. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Jensen v. Brown, 19 F.3d at 1417; Wagner v Principi, 370 F3d. at 1096. On the other hand, when the claimed disability is not found on the service entrance examination, a veteran is presumed to be in sound condition. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The burden then falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that an injury or disease manifested in service was both preexisting and not aggravated by service. See 38 U.S.C. § 1111; Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. This statutory provision is referred to as the "presumption of soundness," the rebuttal of which requires proof both as to pre-existence (the pre-existence prong) and lack of aggravation (the aggravation prong). Aggravation of a pre-existing disorder not found on the service entrance examination can be rebutted by VA only if there is clear and unmistakable evidence of no increase in disability during service, or clear and unmistakable evidence that any increase was due to the natural progress of the disability. Wagner, 370 F.3d at 1096. Once the presumption of soundness applies, the burden of proof remains with VA to establish both the preexistence and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness. See Routen v. West, 142 F.3d 1434, 1440 (Fed. Cir. 1998) ("When the predicate evidence is established that triggers the presumption, the further evidentiary gap is filled by the presumption."); see also Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). However, those that serve in the reserves in periods of active duty for training (ACDUTRA) or periods of inactive duty for training (INACDUTRA) are not veterans and, so, are not entitled to the presumption of being in sound condition upon entry into any such period of service. Thus, as to ACDUTRA and INACDUTRA, there is no requirement that VA find clear and unmistakable evidence that a disability both pre-existed entry into and was not aggravated during such service to rebut such a presumption. 38 U.S.C. § 101(2) and (24); see also Donnellan v. Shinseki, 676 F.3d 1089 (Fed. Cir. 2012). Because the Veteran was seen at military medical facilities after discharge from her verified active service in February 1986, it appears that she served in the military reserves and possibly had periods of additional active duty or active duty for training (ACDUTRA). Given the above, on remand, the RO should contact the Veteran's reserve unit and attempt to verify all of the Veteran's periods of reserve service, specifying whether she had any additional periods of active duty, and whether she had any periods of ACDUTRA. Because it is not alleged that as to a gynecological condition she sustained any injury, there is no need to very any periods of INACDUTRA (since service connection for disabilities incurred during INACDUTRA is warranted only for injuries and not diseases). The RO is reminded that, in requesting records from Federal facilities, efforts to assist should continue until either the records are obtained, or sufficient evidence indicating that the records sought do not exist, or that further efforts to obtain those records would be futile, is received. See 38 C.F.R. § 3.159(c)(2). If the Veteran's periods of additional periods of active duty or any ACDUTRA are unverifiable, that fact should be documented, in writing, in the record. Moreover, based on the foregoing, the Board is of the opinion that the appropriate steps should be taken to attempt to obtain all records of private medical treatment or evaluation for cysts or any gynecological condition prior to entry into active service in February 1982. Also, all additional VA treatment records since April 2012 should be obtained. And, lastly, that the Veteran should be afforded a VA examination for the purpose of determining the nature and extent of any and all gynecological conditions she may have had prior to entry into active service in February 1982 and which also addresses the matter of whether there was a permanent increase any pre-existing gynecological disability during active service or was incurred in active duty, or incurred or aggravated during any period of ACDUTRA. See generally 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)(4); and McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should contact the National Personnel Records Center (NPRC), the Department of the Army, the Veteran's Army Reserve Unit, and any other appropriate source(s) to verify: (a) whether the Veteran served in the reserves prior to her active duty which commenced in February 1982; (b) her service in the reserves following termination in February 1986 of her verified period of active duty; (c) whether she had any additional periods of active duty while in the reserves after termination of her verified active duty in February 1986; and, (d) verification of all periods of ACDUTRA. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. 2. The Veteran should be given an opportunity to identify any healthcare provider who treated her for any gynecological condition prior to entry into her active service in February 1982; as well as any healthcare provider who treated her after active duty discharge in February 1986 whose records are not already on file. The Veteran should specifically be requested to provide the current mailing address(es) of the physicians that treated her for a gynecological condition prior to her February 1982 entry into active duty, i.e., Dr. R. H. B. Jr., who treated her from November 17, 1980, to February 10, 1981, and Dr. L. who treated her in July and August 1981. After securing any necessary authorization(s) from her, obtain all identified treatment records, to include those from Dr. R. H. B. Jr., from November 17, 1980, to February 10, 1981, and from Dr. L. in July and August 1981. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. The appropriate steps should be taken to obtain all VA records of treatment or evaluation of the Veteran for any gynecological condition since April 2012. When obtained, those records must be associated with the record on appeal. 4. After all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination(s) to determine whether (a) any claimed gynecological disorder pre-existed entrance in February 1982 into active service; (b) was aggravated beyond its natural progression during that period of active duty which ended in February 1986, and (c) if any claimed gynecological disorder did not pre-exist her verified active service whether it is as likely as not that it was incurred during her verified active duty. Also, determinations should be made as to whether the claimed gynecological disorder was incurred during a period of ACDUTRA or aggravated during a period of ACDUTRA (for the benefit of the examiner, the Board notes that those who serve on any period ACDUTRA are not presumed to be in sound condition at entrance into such period of ACDUTRA). The examiner should clearly indicate whether the Veteran now has any gynecological condition and provide the diagnosis as to each such condition. The examiner should provide an opinion, consistent with sound medical judgment, as to whether (as contended) the Veteran had uterine or ovarian cysts prior to commencing her active duty in February 1982 but developed tumors or fibroids during active duty from 1982 to 1982 (or during any subsequent period of ACDUTRA) which were distinct from pre-existing cysts. Active Duty i. The examiner should provide an opinion as to whether there is clear and unmistakable evidence that the Veteran's current gynecological condition pre-existed her February 1982 entrance into active duty and, if so, whether there is also clear and unmistakable evidence that it did not undergo a permanent increase in severity during active duty from 1982 to 1986. ii. If it is found that the claimed gynecological condition did not both pre-exist the 1982 entry into active duty and underwent no permanent increase during active duty from 1982 to 1986 (using the clear and unmistakable evidence standard as to both of these determinations), then the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the claimed gynecological disorder was incurred during active duty from 1982 to 1986. ACDUTRA iii. Also, the examiner is requested to render an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the claimed gynecological disorder was incurred in or aggravated (i.e., worsened beyond natural progression with a permanent increase in severity) during each period of verified ACDUTRA. In reaching some of these determinations the examiner should be request to use the standard of whether the evidence is "clear and unmistakable" (obvious, manifest, undebatable) in determining both whether a gynecological disorder pre-existed active military service and, if so, whether the evidence is "clear and unmistakable" (obvious, manifest, undebatable) it underwent any increased in service that was part of its natural progress. In other words, this standard of clear and unmistakable evidence must be used in making both determinations (pre-existence and aggravation) only as to the verified period of active duty from February 1982 to February 1986 but that standard is not applicable to the question of pre-existence or aggravation as to any period of ACDUTRA. If not pre-existing active service, and as to all periods of ACDUTRA, please note that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. The term "more likely" and "at least as likely" support the contended causal relationship; the term "less likely" weighs against the contented causal relationship. Please answer the questions posed with use of the terms "at least as likely", "more likely", or "less likely." The term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition, as opposed to a temporary flare-up of symptoms. Send the claims folder to the examiner for a review of the Veteran's pertinent medical history, to facilitate making these determinations. The rationale for all opinions expressed should be discussed. If any of the opinions, as requested above, cannot be provided without resort to speculation, the examiner should explain why, if possible. 5. Following the completion to the extent possible of the development requested above, the RO should readjudicate the claim for service connection for a cervical uterine condition, to include cysts and tumors. If the claim remains denied, the Veteran and her representative should be provided a Supplemental SOC (SSOC) and afforded the appropriate period of time to response. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).