Citation Nr: 1311704 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 10-41 587 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for dysfunctional uterine bleeding. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Shana Z. Siesser, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1985 to December 2007. This matter comes before the Board of Veterans' Appeals (Board) from a January 2010 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT The Veteran has not been shown to have dysfunctional or abnormal uterine bleeding at any time since filing her claim for service connection in December 2008. CONCLUSION OF LAW Dysfunctional uterine bleeding was not incurred in active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1117, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.317 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), as was done in this case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the RO did provide the appellant with notice in December 2008 and September 2009 prior to the initial decision on the claim in January 2010. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The December 2008 and September 2009 letters informed the Veteran of what evidence was needed to substantiate her claim and of the division of responsibilities in obtaining such evidence. The letters also explained how disability ratings and effective dates are determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all post-service medical records are in the claims file and were reviewed by both the RO and the Board in connection with her claim. She has not identified any other outstanding records that are pertinent to her claim for service connection for uterine bleeding, and she has not requested a hearing before the Board. Additionally, the Veteran was afforded a VA examination in December 2009 that contains sufficient findings with which to properly evaluate the Veteran's present claim and is thus deemed adequate for rating purposes. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Neither the Veteran nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Law and 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 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 competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328 (1997). It is well-settled that in order to be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. See also Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or at any point during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 312 (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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Although the Veteran in this case served during a period of war, she does not allege that the current disability at issue began in combat, and therefore, 38 U.S.C.A. § 1154(b), pertaining to proof of service incurrence or aggravation of a disease or injury in the case of a Veteran who engaged in combat with the enemy, is not for application. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for dysfunctional uterine bleeding. The Veteran's service treatment records do show that she was treated for various gynecological disorders in service, including a history of dysfunctional uterine bleeding, abnormal pap smears, and dyspareunia. She also had cryotherapy following the births of her first two children. The Veteran was discharged from service in December 2007. In May 2008, she underwent a bilateral tubal ligation, hysteroscopy, dilation and curettage, and Novasure endometrial ablation. After the May 2008 procedure, there are no treatment records documenting abnormal uterine bleeding or other gynecological disorders. The Veteran filed her current claim for service connection in December 2008. In support of her claim, she has stated that she had abnormal bleeding that began in service in 2003 and continued until early 2008. She indicated that she was not supposed to continue having any blood flow after her May 2008 procedures; however, she has claimed that she still experiences a light monthly flow although the bleeding between her menstruation periods has subsided. The Veteran underwent a VA examination in December 2009 in connection with her claim for service connection. The examiner reviewed her medical history and performed a physical examination. He noted that the Veteran had a history of dysfunctional uterine bleeding without a specific diagnosis, as her endometrial biopsies and D and C specimens were all benign without pathological features. Significantly, he stated: With regard to her abnormal bleeding, she has undergone uterine endometrial ablation and since that time her periods have been regular but lighter without any intermenstrual bleeding. However, if she develops abnormal bleeding again, it is as likely as not that her cause of this bleeding would be the same as what was occurring while she was in the active duty service. Based on the evidence, there is no indication that the Veteran has had a current diagnosis since she filed her claim. The Board acknowledges that the Veteran had dysfunctional uterine bleeding during service through May 2008. However, since undergoing a procedure in May 2008, the Veteran has not claimed, nor do the records show, any abnormal bleeding. Rather, she has normal, regular menstruation. With regard to the requirement that a claimant have a current disability before service connection may be awarded for that disability, this requirement is 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 and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. See Gilpin v. West, 155 F.3d 1353 (Fed.Cir.1998); Degmetich v. Brown, 104 F.3d 1328 (Fed.Cir.1997). Moreover, the law contemplates that entitlement to service-connected disability compensation benefits may arise after the receipt of a claim. See 38 U.S.C. § 5110(a) (effective date for compensation or pension claims "shall be fixed in accordance with the facts found, but shall be no earlier than the date of receipt of application therefor"); 38 C.F.R. § 3.400 (2012) (generally, effective date of a compensation or pension claim "will be the date of receipt of the claim or the date entitlement arose, whichever is later"). The examiner acknowledged that, if the Veteran developed abnormal bleeding at some point in the future, it would likely be due to the same cause as the abnormal bleeding during service. However, as the Veteran does not currently have any dysfunctional or abnormal uterine bleeding or a current diagnosis of a disorder, service connection cannot be granted at this time. As outlined above, generally, the threshold requirement for establishing service connection is a diagnosis related to the claimed condition. See Brammer, 3 Vet. App. at 225 (1992). However, as the Veteran had service in the Persian Gulf War, the provisions of 38 C.F.R. § 3.317 are applicable, and if the provisions of this regulation are met, the Veteran may establish entitlement to service connection for her claimed menstrual disorder as manifestations of a Gulf War-related undiagnosed illness. In order to establish the presence of chronic undiagnosed illness for which service connection may be granted pursuant to 38 C.F.R. § 3.317, it is not sufficient that the Veteran merely reports symptomatology. Rather, there must be "objective indications of chronic disability" that include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. In this case, no such objective evidence of the Veteran's reported symptomatology has been clinically observed since she filed her claim. As stated above, her dysfunctional bleeding ceased after the May 2008 procedures. The VA examiner found that there was no abnormal bleeding, and there are no treatment records documenting such symptomatology. In fact, the Veteran herself has indicated that the abnormal bleeding stopped in early 2008, which was well before she filed her claim in December 2008. In summary, the evidence of record does not establish that the Veteran has had any dysfunctional or abnormal uterine bleeding at any point during the pendency of the appeal. Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for dysfunctional uterine bleeding. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for dysfunctional uterine bleeding is not warranted. ORDER Service connection for dysfunctional uterine bleeding is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs