Citation Nr: 1313671 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 12-20 190 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for residuals of toxic shock syndrome, to include abnormal pap smears and removal of left ovary. REPRESENTATION Appellant represented by: John Berry, Esq. ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from January 1982 to December 1992. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Muskogee, Oklahoma, Department of Veterans Affairs (VA) Regional Office (RO). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. These were reviewed in conjunction with this decision. FINDING OF FACT The competent and credible evidence does not show that the Veteran has residuals of toxic shock syndrome or that abnormal pap smears or her left oophorectomy were related to her military service. CONCLUSION OF LAW Residuals of toxic shock syndrome, to include abnormal pap smears and removal of left ovary, were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties 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). Proper notice from VA must inform the claimant 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 claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See 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. VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in September 2011 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). Analysis The Veteran has claimed that her history of abnormal pap smears and removal or left ovary (oophorectomy) were due to the toxic shock syndrome that she suffered during her military service. To prevail on the issue of service connection, there must be competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran's diagnosis of and treatment for toxic shock syndrome during her military service is not in dispute. See Service Treatment Records from February 1982. Thus the in-service disease requirement is met. With regard to the current disability requirement, the June 2012 VA examiner specifically found that the Veteran did not have residuals of toxic shock syndrome. Instead, that examiner noted that the Veteran was status post toxic shock syndrome without reoccurrence, inactive. The Veteran has also claimed service connection for abnormal pap smears, the Board notes that pap smears are laboratory test results, which may indicate disease, but not, in and of themselves, disabilities. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (noting that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities). The record does, however, show that the Veteran underwent a salpingo-oophorectomy in March 2011 due to left mucinous cystadenoma. Thus, the current disability requirement is satisfied with regard to the left salpingo-oophorectomy. The remaining question for consideration is whether the current left salpingo-oophorectomy is causally due to the in-service toxic shock syndrome. From the evidence of record, such causal relationship has not been demonstrated. The record does not contain a medical opinion suggesting that the Veteran's left salpingo-oophorectomy is related to her period of active service. A June 2012 VA opinion found that the Veteran's salpingo-oophorectomy was less likely as not caused by or a result of an event in military service. The accompanying rationale noted that "the toxic shock syndrome was a one-time episode with no reoccurrence and there are no known residuals of toxic shock." Furthermore, toxic shock syndrome was noted to be a severe infection with no relationship to cyst formation. The Board finds the June 2012 opinion of the VA examiner to be probative as it was definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. Accordingly, the opinion is found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Veteran has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). The Board recognizes the Veteran's contentions that her left salpingo-oophorectomy was due to the toxic shock syndrome during service. To the extent that the Veteran herself believes that her salpingo-oophorectomy was caused by her active service, the Board acknowledges that a lay person may speak as to etiology in some limited circumstances in which a nexus is obvious merely through lay observation, such as a fall leading to a broken leg. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship. Indeed, the record shows a nearly 30-year gap between resolution of toxic shock syndrome in service and discovery of the cyst that led to her salpingo-oophorectomy. As such, the Veteran is not competent to address etiology in the present case. As such, there is no competent and credible nexus evidence establishing a connection between the Veteran's left salpingo-oophorectomy and her active service. In short, the claim of service connection for residuals of toxic shock syndrome, to include abnormal pap smears and removal of left ovary, must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for residuals of toxic shock syndrome, to include abnormal pap smears and removal of left ovary, is denied. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs