Citation Nr: 1309927 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-32 879 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for residuals of a therapeutic abortion. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and R. D. ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1972 to May 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified at a hearing before the undersigned Veterans Law Judge in January 2013. A transcript of the hearing is of record. The Veteran is currently service-connected for major depressive disorder, diabetes mellitus, cataracts, bilateral peripheral neuropathy of the upper extremities, and bilateral peripheral neuropathy of the lower extremities. The Board finds that the evidence, including the Veteran's testimony, raises a claim for service connection for headaches which is independent from the claim for service connection for residuals of a therapeutic abortion. That matter is referred to the RO for initial adjudication. FINDINGS OF FACT The Veteran does not have any currently diagnosed residuals of an abortion. CONCLUSION OF LAW Service connection for residuals of a therapeutic abortion is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303(2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist Under the Veteran's Claims Assistance Act of 2000 (VCAA), VA has certain notice and assistance requirements. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Upon receipt of a substantially complete application for benefits, VA must notify the Veteran of what information or evidence is needed in order to substantiate the claim, and it must assist the Veteran by making reasonable efforts to obtain the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Duty to Notify Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements apply to all five elements of a service connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the appellant's service and the disability; (4) degree of disability; and (5) effective date of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Prior to the initial adjudication of the claim, the RO's September 2008 letter advised the Veteran of the elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman, 19 Vet. App. at 486. Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of her claims, including the opportunity to present pertinent evidence and testify at the January 2013 hearing. Thus, the Board finds that the content requirements of the notice VA is required to provide have been met. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Duty to Assist The duty to assist the Veteran has also been satisfied in this case. The record in this case includes service treatment records, VA treatment records, and VA examination reports. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). Further, no additional pertinent evidence has been identified by the Veteran. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i), McLendon v. Nicholson, 20 Vet. App. 79 (2006). In October 2008, the Veteran was provided a VA examination with regard to the claim for service connection for residuals of a therapeutic abortion. The Board finds the October 2008 VA examination report contains sufficiently specific clinical findings and informed discussion of the facts of the record to provide probative medical evidence adequately addressing the issue below. The examination report obtained contains sufficient information to decide the issue on appeal. See Massey v. Brown, 7 Vet. App. 204 (1994). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to this issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006); see also Dingess/Hartman, 19 Vet. App. 473. Legal Criteria, Factual Basis and Analysis Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be warranted 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). In order to establish service connection for a claimed disability, there must be evidence of a present disability; evidence of an in-service incurrence or aggravation of a disease or injury; and evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). As an initial matter, the Board notes that it has reviewed all of the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends that as a result of a therapeutic abortion performed while she was on active duty she experienced residuals of the abortion, to include headaches and childlessness. The Veteran asserts that these disabilities persisted following her separation from service. Service treatment records (STRs) show that the Veteran underwent a therapeutic abortion during service in March 1973. Following the abortion, the Veteran was released from the hospital asymptomatic. Her STRs show a history of gynecological treatment, including the prescription of birth control pills, the insertion and extraction of an intrauterine device (IUD), abnormal bleeding, and pelvic pain. While the STRs are unclear as to the treatment and diagnosis of these gynecological symptoms, there is no evidence, or notation, on any of the STRs indicating that the Veteran's gynecological symptoms were related to the 1973 abortion. The Veteran's desire to have children was first noted in a treatment record from April 1981. In June 1984, it was again noted that she was not taking birth control pills, because she desired pregnancy. In September 1986, the Veteran had a normal gynecological examination; however, the treatment record noted that the Veteran requested an infertility work up. The treatment record indicated the Veteran was instructed to have her husband report to "the S/C" (unidentified by the record) for the start of the work up. There is no indication that any infertility work up was completed or that the Veteran sought further treatment for infertility while in service. Upon separation from service in April 1987, the Veteran had a normal gynecological examination and normal PAP test. With regard to the Veteran's headaches, the STRs are replete with treatment for headaches beginning in October 1976, when she was diagnosed with a tension headache due to nervous tension and the start of a new job. In November 1976, the Veteran was again treated for a headache. Treatment records from February 1977 report the Veteran suffered a headache for five weeks that would start at work, but would go away when she relaxed. Also in February 1977, the Veteran was referred to a Headache Clinic, where she reported that in August 1976 she noticed an increase in the severity and number of headaches. She reported experiencing headaches two times a week that lasted four to six hours. It was noted that the headaches were almost always while she was at work and occurred since her new assignment. The Veteran was diagnosed with tension headaches and some elements of mild depression. The Veteran's service records contain an October 1977 letter from a General Medical Officer which states the Veteran has a history of tension headaches which were controlled by medications until March 1977, but since then her headaches have increased in intensity and frequency. The letter also states that a large part of her symptomatology stems from her current job and separation from her husband. Treatment records from 1978, 1980 and 1982 note the Veteran's history of tension headaches. Her service separation examination and report of medical history were normal as to headaches. Post-service treatment records are void of any complaints of, treatment for, or diagnosis of headaches. The only mention of headaches is a June 2007 mental health evaluation, in which the examiner stated the Veteran reported that she was forced to have an abortion resulting in severe depression, headaches, and emotional distress. There is no additional mention of headaches in any of the post-service treatment records. With regard to the Veteran's claim of childlessness, in an April 2006 VA medical center (VAMC) social work record, it was noted that the Veteran had residuals from an abortion at age 19, but the residuals were not identified, nor diagnosed. The record indicates that the Veteran underwent a bilateral tubal ligation; however, these medical records are not part of the record. The record also indicates that the Veteran began menopause at age 46. In June 2008, the Veteran underwent a gynecological examination. There was no report of pelvic pain, discharge, or abnormal bleeding. Her PAP test showed no evidence of malignancy. It was a normal gynecological examination. A social work note from September 2008 indicates the Veteran sought assistance in filling out paperwork for the instant claim. It is noted that neither she, nor the social worker, were sure why she was being evaluated for abortion and residuals since she requested an increased rating for her depression. The Veteran underwent a VA examination in October 2008. At the examination the Veteran reported she was diagnosed with abortion and residuals, and has had the condition since 1973. She stated that she was in menopause, which started at age 46. She stated that she had one pregnancy but zero births. The medical history she provided the examiner included no urinary tract infections, heavy bleeding since 1973, irregular bleeding since 1973, pelvic pain, no vaginal discharge, and fevers. The Veteran reported the heavy bleeding and pelvic pain ended in 1990. The Veteran also stated that she was not receiving any treatment for her condition, and does not experience any functional impairment from this condition. A pelvic examination revealed a uterus normal in size with no palpable masses, abnormal discharge, or undue tenderness. A PAP test was declined by the Veteran, because one was performed during the June 2008 gynecological examination at the VAMC. The examiner reported that the VAMC physician reported that the results were negative for malignancy. After examination and interview of the Veteran, the examiner determined that there was no diagnosis of abortion with residuals, because there is no pathology to render a diagnosis. The Veteran continued to seek gynecological treatment at the VAMC. In June 2009, the Veteran underwent an annual gynecological examination. Again it was noted the Veteran previously had a bilateral tubal ligation. A PAP test showed no evidence of malignancy. The examiner concluded it was a normal gynecological examination. In June 2011, an annual gynecological examination was undertaken. It was unremarkable for gynecological complaints. The examination was normal, however, the Veteran was advised that the results of her PAP test were abnormal, and a repeat PAP test was conducted six months later. The Veteran had an annual gynecological examination in June 2012. At this time the Veteran's PAP test showed no evidence of malignancy, however, it showed presence of bacterial vaginosis. She was prescribed medication. A normal gynecological examination was noted. The Veteran testified before a Decision Review Officer (DRO) in December 2009. At the hearing the Veteran testified that following the abortion she had a lot of bleeding, heavy periods, painful periods, painful intercourse, and infections. With regard to the residuals from the abortion, her primary testimony was that she remained childless. She testified that while on active duty, and following separation from service, she desired pregnancy. The Veteran testified that she did not seek help in becoming pregnant while on active duty. As for headaches, the Veteran testified she had a lot of headaches while in service. There was no testimony regarding headaches following service. In January 2013, the Veteran testified before the undersigned. When asked about the symptoms she experienced after the abortion, she testified that she had a lot of headaches while in service. However, the Veteran could not identify any specific treatment she received for them. When asked if she continued to get headaches following service, the Veteran testified that she gets headaches occasionally, and reported having a headache the day of the hearing from not being able to find the building for the hearing. Asked if she continued to receive treatment for headaches following service, the Veteran testified that she mainly had them when she was in service, and sometimes afterwards, but that she was not feeling unwell. When asked if there were any additional disabilities caused by the in-service abortion, the Veteran testified that she desired pregnancy, but remained childless. She testified that she believes the abortion made it impossible for her to have children, because she was trying to have children while in service, but that did not happen. The Veteran further testified that she did not seek help to determine what was wrong with her as far as becoming pregnant. When asked if there were any other disabilities that she may have because of the abortion, the Veteran testified that she has no offspring. The threshold matter that must be addressed in a claim of service connection is whether the claimed disability it present. Service medical records show that the Veteran had a therapeutic abortion in service in March 1973. Although, she sought treatment for pelvic pain, abnormal bleeding, and headaches in service, her separation examination was normal upon separation from active duty. Further, with regard to any gynecological residuals, post-service medical records do not show chronic residuals related to the in-service abortion. While VAMC treatment records indicate the Veteran had a bilateral tubal ligation, there is no evidence in the record that the procedure was in any way related to the in-service procedure. Further, the VA examiner concluded there was no diagnosis of residuals of an abortion, because there was no pathology to render a diagnosis. All other medical records are devoid of any permanent residual or chronic gynecological disability. Moreover, given that the Veteran is both post menopausal and has had a tubal ligation, it cannot be said that any current infertility represents the residual of the in-service abortion. Additionally, the Veteran's post-service treatment records are devoid of any headache disability due to the abortion in service. The Board has noted that the Veteran testified that her headaches were mostly in-service, and only occasionally did she experience a headache. Specifically, the Veteran stated she had a headache the day of the hearing caused by her inability to find the building where the hearing took place. The Board notes, however, that there is no competent, supported medical opinion that her claimed headaches may be related to the abortion in service. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). There cannot be a valid claim of service connection in the absence of proof of a present disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The evidence of record does not show that the Veteran has any diagnosed residuals of the in-service therapeutic abortion, to include any gynecological disabilities or headache disabilities that can be attributed to the in-service therapeutic abortion. Hence, service connection for residuals of a therapeutic abortion must be denied. Since resolution of this claim ultimately turns on whether the Veteran has a current diagnosis of residuals of a therapeutic abortion, her lay statements that she has headaches and is childless have no bearing on the outcome of this claim. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). In other words, she is not competent to say whether she currently has a current diagnosis of residuals of a therapeutic abortion. See Washington v. Nicholson, 19 Vet. App. 363 (2005); Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). For these reasons and bases, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for residuals of a therapeutic abortion. And inasmuch as the preponderance of the evidence is against this claim, there is no reasonable doubt to resolve in her favor, and this claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for residuals of a therapeutic abortion is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs