Citation Nr: 1320276 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 11-17 014 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for endometriosis. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active service from January 12, 1988 to February 11, 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board has reviewed the contents of the Veteran's Virtual VA file and found no medical or other evidence pertinent to this appeal that is not in the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). A history of conditions existing prior to service recorded at the time of the entrance examination does not constitute a notation of such conditions for the purpose of establishing whether the veteran was of sound condition at enlistment. See 38 C.F.R. § 3.304(b)(1). However, the recording of such a history in the entrance examination will be considered together with all other material evidence in determinations as to inception of the disability at issue. See id. In order to rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). Thus, when the presumption of sound condition applies, the claimant is not required to establish aggravation by showing that the pre-existing disease or injury increased in severity during service. See VAOPGCPREC 3-03. Rather, the burden remains with VA to show by clear and unmistakable evidence that the pre-existing disease or injury was not aggravated by service. See id.; Wagner, 370 F.3d at 1096. VA may find a lack of aggravation if the clear and unmistakable evidence shows there was no increase in disability during service, or that any increase in disability was due to the natural progress of the pre-existing condition. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (2012); Wagner, 370 F.3d at 1096. If this burden is met, the veteran is not entitled to service connection benefits. Wagner, 370 F.3d at 1096. On the other hand, if the presumption of soundness applies and VA fails to show by clear and unmistakable evidence that the pre-existing condition was not aggravated by active service, then the presumption has not been rebutted. See Wagner, supra (holding that if the government fails to rebut the presumption of soundness under section 1111, then the veteran's claim is one for service connection and, if granted, no deduction for the degree of disability existing at the time of entrance will be made); VAOPGCPREC 3-03. In other words, the claim may not be denied, nor benefits deducted, on the basis of a finding that the disability in question pre-existed active service, if VA does not also meet its evidentiary burden of showing that the disability was not aggravated during service. Pre-enlistment private medical records indicate the Veteran had diagnoses of dysuria, recurrent urinary infections and urethral stenosis. In March 1984, she underwent a urethroplasty. See. e.g., May 1988 rating decision. Consistent with this evidence, she reported on her November 1987 induction examination she had been treated for "a female disorder" and a "tumor, growth, cyst, [or] cancer." The November 1987 examiner cited these diagnoses in a November 4, 1987 clinical record and that a pelvic exam "reveals a 'fixed' uterus and the usual pelvic mobility." Two months after this examination, the Veteran complained of dysuria and was diagnosed with chronic pelvic inflammatory disease (PID) in January 1988. After one month of active duty, she was discharged for failing to meet the procurement medical fitness standards. See Form DD 214. In February 1988, the Veteran sought service connection for a kidney infection. Her claim was denied, with VA finding: (1) the claimed kidney infection was not shown by available evidence; (2) the diagnosed PID was shown to have pre-existed service; and (3) pre-existing urinary infections were not shown to have been aggravated by service. See May 1988 rating decision. The Veteran filed her claim of service connection for endometriosis in July 2009. She was afforded a VA examination in January 2010. She reported having laparoscopies in 1993, 1997, and 2001. She reported that she had her left ovary removed in 2008 and a hysterectomy in 2010. Without reviewing the claims file, the examiner diagnosed the Veteran with endometriosis based on private treatment records she supplied during the examination. The examiner also opined that the endometriosis pre-existed service and was aggravated by service. The RO found the examiner's report inadequate because it did not give a rationale for its conclusions, and ordered a clarifying opinion. In April 2011, another VA examiner confirmed the endometriosis pre-existed service, but this examiner found that "endometriosis is a chronic condition [that] flares [only] during menstruation." The examiner observed that the Veteran's condition would have only been a temporary flare-up, and thus it was not permanently aggravated by her service. Because of the divergent opinions of the two VA examiners, the Board does not have sufficient medical evidence to ascertain whether the Veteran's endometriosis clearly and unmistakably existed prior to service and was not aggravated by service. Thus, another VA examination is required. McLendon v. Nicholson, 20 Vet. App. 79 (2006), see also Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991) (the Board may not make use of its own unsubstantiated medical conclusions); 38 U.S.C.A. § 5103A(d). On remand, the Veteran must be scheduled for another VA examination so that an opinion regarding aggravation of a pre-existing condition may be rendered. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a gynecologist. The following considerations will govern the opinion: a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. b) The examiner will be advised: The purpose of the examination is to ascertain whether the Veteran's endometriosis was a result of any in-service incident or whether she had endometriosis that pre-existed service and was aggravated by service. The question of the severity of the disorder is only relevant to the extent that it may provide information as to the source of the disorder. The mere statement of the examiner's expertise and/or a bare summary conclusion is not alone sufficient under the law to accomplish VA's legal obligation to assist the Veteran. By law, the Board must evaluate multiple factors in determining whether medical opinions are sufficient to evaluate a claim. These factors include but are not limited to whether the examiner was aware of all facts of record; reviewed the claims folder; conducted any necessary clinical testing or interview with the Veteran, and whether the examiner explained the factual and medical bases for any opinion. c) With respect to the review of the claims file, the Board calls the examiner's attention to the following: i) The Veteran's pre-service and service treatment records. ii) The January 2010 VA examination report which stated the endometriosis pre-existed service and was aggravated by service; and iii) The April 2011 VA examination report which stated the endometriosis pre-existed service and was not aggravated by service. d) The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete rationale in support of such a finding. e) The examiner is advised that the Board does not have the medical expertise to respond to the following questions, and in any event is prohibited by law from doing so solely on the basis of its own medical judgment. Instead, it is the examiner's task to provide a fully explained medical opinion as to: (1) Can it be stated that the "dissolved" left ovarian cyst noted during the Veteran's enlistment examination represented the presence of endometriosis, and if so, to what degree of medical certainty? (2) If it can be stated that the "dissolved" left ovarian cyst noted during the Veteran's enlistment examination represented the presence of endometriosis, was endometriosis aggravated (i.e., permanently worsened) by active duty? Please state the opinion in terms of medical certainty. The examiner is advised that the evidentiary standard whether a condition existed prior to service is "clear and unmistakable," which requires that the pre-existence of a condition and the no-aggravation result both be "undebatable." (3) If it cannot be stated that the "dissolved" left ovarian cyst noted during the Veteran's enlistment examination represented the presence of endometriosis, did endometriosis begin as a result of active service? f) If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 3. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, in whole or in part, the Veteran and her representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ Vito A. Clementi 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).