Citation Nr: 1318965 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 06-02 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for fibroids. 2. Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and her daughter ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran performed active military service from October 1976 to September 1989. This appeal arises to the Board of Veterans' Appeals (Board) from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in part, denied service connection for fibroids and hypertension. In July 2008, the Veteran presented testimony in a Travel Board hearing before the undersigned. A copy of the transcript has been associated with the claims folder. In December 2008 and April 2012, the Board remanded these claims for development which has been completed, and the case has been returned to the Board for appellate consideration. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. As noted in the April 2012 remand, in October 1994, the Veteran reported that she was unemployable due to her service-connected disabilities. The RO has never developed this claim, and it is again REFERRED to the RO for appropriate action. FINDINGS OF FACT 1. Fibroids were not shown in service, and there is no etiological relationship between any fibroids manifested during the course of the appeal and military service. 2. Hypertension was not shown in service, within the first post-service year, and there is no etiological relationship between service-connected varicose vein disorder or military service. CONCLUSIONS OF LAW 1. Fibroids were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. Hypertension is not proximately due to or the result of a service-connected disability, was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Stegall Considerations As noted above, the Board remanded this matter on two occasions. In December 2008, the Board instructed the Appeals Management Center (AMC) to obtain the Veteran's service treatment records and her records from the U.S. Postal Service, U.S. Department of Labor, and the Office of Personnel Management; provide her an examination for her claimed uterine fibroids; and to readjudicate the claims. Subsequently, the RO determined that the Veteran's service treatment records were not available; her records from the U.S. Postal Service, U.S. Department of Labor, and the Office of Personnel Management were associated with the claims folder; she was afforded a gynecological examination in May 2010 and an addendum report was obtained in November 2010; and her claims were readjudicated in a December 2010 supplemental statement of the case (SSOC). Then in April 2012, the Board determined that the gynecological examination reports of records were insufficient to render a decision as to the issue of service connection for fibroids and that an examination was warranted to address the issue of service connection for hypertension, and remanded the matter for further examinations and to readjudicate the claims. As a result of the Board's remand, the Veteran was afforded an examination for her claimed hypertension in May 2012 and addendum report for fibroids was also obtained in May 2012. The Veteran's claims were readjudicated in a November 2012 SSOC. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist In correspondence dated in March 2006 and August 2006, prior to the December 2006 rating decision, and September 2009, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012), known as the Veterans Claims Assistance Act of 2000 (VCAA). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The March 2006 and August 2006 letters also notified the Veteran of the process by which initial disability ratings and effective dates are established as set forth in Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to her claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). All identified and available service and post-service treatment records have been secured. In memoranda dated in November 2006 and October 2010, the RO made a formal finding on the unavailability of service treatment records (specifically those from the 5th General Hospital in Stuttgart, Germany), and indicated that all efforts to obtain those records had been exhausted and further attempts would be futile. In a case in which a claimant's service records are unavailable through no fault of her own, there is a heightened obligation for VA to assist the veteran in the development of her claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365(1991); see also Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a veteran in developing facts pertaining to his claim in a case in which service treatment records are presumed destroyed includes the obligation to search for alternative medical records). The Board observes that in an October 2010 letter the Veteran was notified of the unavailability of her service treatment records and was afforded an opportunity to supplement the record with additional evidence. To date, she has not done so. Therefore, the Board finds that additional efforts to obtain these records would be futile, and as such, the Board finds that VA has fulfilled its duty to assist in obtaining such records. All other available records identified by the Veteran have been obtained and associated with the claims folder. Also, the Veteran was provided VA examinations for her claims. Although in the April 2012 remand the Board determined that the May 2010 examination report and November 2010 addendum report were inadequate to address the issue of service connection for fibroids, pursuant to the Board's remand another addendum report was obtained in May 2012. Additionally, the Veteran was afforded an examination for her hypertension in May 2012. Review of these examination reports reflect that cumulatively the examiners reviewed the Veteran's past medical history, recorded her current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board, therefore, concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and her representative have not contended otherwise. Additionally, the Veteran presented testimony in support of her claims before the undersigned. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to fully explain the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the July 2008 hearing, the undersigned complied with the requirements set forth in Bryant. Additionally, the Veteran was offered an opportunity to ask the undersigned questions regarding her claim. Neither the Veteran nor her representative has asserted that VA has failed to comply with 38 C.F.R. § 3.103(c)(2) (2012), nor have they identified any prejudice in the conducting of the Board hearing. The Board, therefore, concludes that it has fulfilled its duty under Bryant. Thus, the duties to notify and assist have been met. Analysis Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2012). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Fibroids The Veteran essentially contends that she has fibroids related to service. Service treatment records are negative for any complaints or findings related to fibroids. The separation examination report in May 1989 reflected no relevant abnormality. Relevant post-service medical records include a June 8, 2000 VA pelvic echogram report reflecting that a large uterine fibroid was found. See claims files, Vol 4. In July 2008, the Veteran testified before the undersigned Acting Veterans Law Judge that a fibroid disorder of the uterus was first manifested by excessive bleeding during menstrual cycles during service. A May 2010 VA gynecology compensation examination report noted that uterine fibroids were asymptomatic. Concerning their etiology, the examiner stated that they apparently began during active service, as the Veteran reported that they appeared after the birth of her last child in February 1989. In a November 2010 addendum report, however, the VA examining physician stated, "[t]he problems due to the fibroids occurred long after leaving the service." The physician also reported, "[t]he fibroid problems have all resolved, no longer an issue." In April 2012, the Board determined that there were outstanding inquires. The first question was whether a physician can, without performing another pelvic echogram, conclude that the large uterine fibroid is no longer there. Assuming that the large uterine fibroid has resolved as reported, the Board noted that the second question concerned whether it resolved prior to the current appeal period. Although the physician stated, in November 2010 that the Veteran's fibroid has resolved, it was apparently symptomatic in January 2006, when the Veteran submitted her service connection claim. The third question concerned when the uterine fibroid arose. In the May 2010 examination report, the physician felt that it arose during active service, but in the November 2010 addendum the physician changed positions and stated that the fibroid uterus did not occur during active service. Pursuant to the Board's remand, another addendum report was rendered in May 2012. The examiner reviewed all eight volumes of the claims folders. In addressing the Board's first question, the examiner indicated that the original fibroids were palpated on pelvic examination in June 2000, and an ultrasound a week later confirmed those physical findings. It was noted that most fibroids, especially the symptomatic ones, were found by physical examination. The May 2010 VA examination was conducted by a board certified gynecologist who noted a small uterus, which the current examiner correlated to no significant fibroids. He added that fibroids shrink after menopause as this was the normal process of fibroids. As to the second question, the examiner stated that menopause started in October 2009 and fibroids shrunk by May 2010, but he was unable to pinpoint the exact day. With regard to the final inquiry posed by the Board, the examiner noted that the rationale for not saying that fibroids were present during service was due to the lack of documentation. He stated that the Veteran reported that she was told that she had fibroids on her post-partum examination; however, the post-partum examination report did not show documentation of a pelvic examination or diagnosis of fibroids. The examiner further noted that the earliest documented symptoms attributable to fibroids were in March 1987 when the Veteran was noted to have dysmenorrhea. The examiner acknowledged that not all fibroids have symptoms. In conclusion, the examiner indicated that the examiners' conclusions were based upon evidence and that memories were affected by many factors. When assessing the probative value of a medical opinion, the access to the claims file and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The United States Court of Appeals for Veterans Claims (Court) has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further, a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves- Rodriguez v. Peake, 22 Vet App 295, 304 (2008). In this case, the Board finds that the VA examination and addendum reports are the most probative evidence of record as they were definitive, based upon a complete review of the Veteran's entire claims file, and in consideration of both the Veteran's reported history and the Board's remand directives. Significantly, the VA examiners' findings are consistent with the evidence of record, which is negative for any documentation of fibroids during service. Accordingly, the Board concludes that the VA opinions are found to carry significant weight and the Board finds that any fibroids that were present during course of appeal are not related to service. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement for service connection that a current disability be present 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 even though the disability resolves prior to the Secretary's adjudication of the claim). In sum, the probative evidence demonstrates that there were no fibroids present in service, and any present during the course of this appeal were not related to service. Service connection for fibroids is thus not warranted. Hypertension The Veteran essentially contends that she currently has hypertension related to service, or secondary to service-connected varicose veins. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101 note (1) (2012). The term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. Id. If hypertension becomes manifest to a degree of 10 percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). This presumption does not apply in the present case as hypertension did not manifest until many years after discharge, as discussed below. A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310 (2012). Secondary service connection is permitted based on aggravation. Compensation is payable for the degree of aggravation of a non-service- connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between the disability and an injury or disease incurred in service. Establishing service connection on a secondary basis essentially requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.303, 3.310 (2012). The Veteran's service treatment records reflected normal blood pressure readings. The May 1989 separation examination report showed no relevant abnormality. Relevant post-service evidence includes April 1990 and May 1992 VA compensation examination reports, which noted normal blood pressure readings. A March 1997 VA out-patient treatment report noted a blood pressure reading of 140/104. Hypertensive readings were noted at various times since then. In January 2006, the Veteran claimed that high blood pressure began in 1984, while stationed in Germany. In April 2006, a former military supervisor reported his recollection that the Veteran had "uncontrollable high blood pressure" during active service. In July 2008, the Veteran testified before the undersigned that high blood pressure began during pregnancy while in active service. She testified that she was never treated for hypertension during active service. The Veteran was afforded an examination in May 2012 for which the examiner reviewed the claims folder in conjunction with evaluation of the Veteran. The examiner noted a diagnosis of hypertension, which was established in 1997. During the evaluation, the Veteran reported that she was told that she had hypertension during service in 1985 after the birth of her second child, and after varicose veins surgery in 1980. The examiner noted that at one point the Veteran indicated that she had started on medication for hypertension during service and then at another point stated that she was not treated for hypertension until after she got out of service; she admitted that her memory was "a bit hazy that far back." Based on evaluation and interview of the Veteran along with review of the claims folders, the examiner opined that hypertension was less likely than not incurred in or caused by service. The examiner found that there was no evidence in the service treatment records that the Veteran was diagnosed with hypertension, and indicated that the blood pressure readings around that time were normal (in May 1989, 108/76; July 1989; 108/80; and September 1989, 104/70). He observed that on VA examination in April 1990, a blood pressure reading of 122/70 was noted and on examination in May 1992 a reading of 110/82 was noted. In noting the Veteran's contentions that she was diagnosed with hypertension during her pregnancy in 1984/1985 and that she was not treated for hypertension at that time, along with her indicating that she may have high or low blood pressure on her report at service separation in May 1989, the examiner posed that the Veteran may have been told that her blood pressure was high on a couple of occasions. However, the examiner clarified that an occasional high blood pressure reading did not meet the criteria for a diagnosis of hypertension. He also noted that it would be very unusual for someone diagnosed with essential hypertension (the Veteran's current diagnosis) to have multiple low/normal blood pressure readings documented from 1989 to 1992 after a diagnosis of essential hypertension had been made earlier as contended by the Veteran. Due to the lack of documentation of hypertension during service and documented evidence of normal blood pressure at separation and normal blood pressure readings up to three years after separation, the examiner opined that the Veteran's hypertension was less likely than not incurred in or caused by her service. As to secondary service connection, the examiner found that hypertension was less likely than not proximately due to or the result of the Veteran's service-connected disorder. He noted that the Veteran stated that she was diagnosed with hypertension after her left leg varicose vein stripping procedure in 1989. He found that there was clear documentation of blood pressure readings before and after the procedure: prior to the procedure her blood pressure reading was 100/78, one day after the procedure her blood pressure reading was 110/70, three months later her blood pressure reading was 108/76 and was normal again in September 1989 at service separation. The examiner concluded that the surgical procedure did not cause her hypertension. He further noted that there was no connection between varicose veins and hypertension, varicose veins do not cause hypertension, and the pain of varicose veins (or any chronic pain) did not cause hypertension. Based on the evidence, the Board finds that the VA examination report is the most probative evidence of record as it was comprehensive, definitive, based upon a complete review of the Veteran's entire claims file, and in consideration of both the Veteran's reported history and the Board's remand directives. Significantly, the VA examiner's findings are consistent with the evidence of record, which is negative for any documentation of hypertension during service or for several years after service, or in connection with varicose veins or surgery related thereto. Accordingly, the Board concludes that the VA opinion is found to carry significant weight and the Board finds that the Veteran's current hypertension is not related to service or service-connected left lower varicose veins. See 38 C.F.R. § 3.303, 3.310 (2012). In sum, although the Veteran has a current diagnosis of hypertension, there is no probative evidence that it was present in service, manifested within a year of service discharge, or is related to service or a service-connected disability. Service connection is thus not warranted. Other Considerations The Veteran has been accorded ample opportunity to present competent evidence in support of the claims. She has failed to do so. See 38 U.S.C.A. § 5107(a) (West 2002). The Court has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, [s]he cannot passively wait for it in those circumstances where [s]he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 92 (1991). In making all determinations, the Board has considered the lay assertions of record. In this regard, a layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (noting that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board and the VA examiners have taken into account the Veteran's reported history. The Board acknowledges that the Veteran is competent to testify as to her symptoms. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render an opinion as to the etiology of any fibroids present during the course of the appeal or current hypertension. See 38 C.F.R. § 3.159 (a)(1) (2012) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what she has experienced, she is not competent to ascertain the etiology of her current disorders, as the causative factors for such are not readily subject to lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). For all of these reasons, the Board gives more credence and weight to the VA examiners' opinions as they were rendered after extensive evaluations of the Veteran, review of the Veteran's history, and consideration of medical principles by licensed medical professionals. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claims. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b) (West 2002). ORDER Service connection for fibroids is denied. Service connection for hypertension is denied. ____________________________________________ J.K. BARONE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs