Citation Nr: 1322151 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 09-18 717A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for residuals of uterine cancer. 2. Entitlement to an effective date earlier than December 4, 2008, for the award of service connection for a total abdominal hysterectomy and left salpingo-oophorectomy. 3. Entitlement to an effective date earlier than December 4, 2008, for the award of special monthly compensation based on anatomical loss of a creative organ. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active military service from November 1983 to March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran requested a Travel Board hearing in her May 2009 substantive appeal (VA Form 9). She had a Decision Review Officer hearing on March 16, 2010. That same day, the Veteran withdrew hear request for a Travel Board Hearing. The Board will proceed to adjudicate the appeal. 38 C.F.R. § 20.702(e) (2012). FINDINGS OF FACT 1. The Veteran does not have uterine cancer or any residuals of uterine or any other gynecological cancer. 2. The Veteran first filed a claim of service connection for a total abdominal hysterectomy and left salpingo-oophorectomy on December 4, 2008. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of uterine cancer have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 2. The assignment of an effective date earlier than December 4, 2008, for the awards of service connection for a total abdominal hysterectomy and left salpingo-oophorectomy and special monthly compensation based on anatomical loss of a creative organ is not warranted. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Introductory Matters In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issues under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's 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 Veteran and her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of her claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that the request for earlier effective dates is a downstream issue from the grant of the benefit sought, which was initiated by an NOD. The Court has held that, as in this case, once an NOD from a decision establishing service connection and assigning the rating and effective date has been filed, the notice requirements of 38 U.S.C.A. §§ 5104 and 7105 control as to the further communications with the appellant, including as to what 'evidence [is] necessary to establish a more favorable decision with respect to downstream elements....' Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). The Board also finds that all necessary development of the downstream earlier effective date claims has been accomplished, and therefore appellate review of these claims may proceed without prejudicing the Veteran. Resolution of this appeal ultimately turns on when she filed her claim, so an examination and opinion are not needed to fairly decide this appeal for an earlier effective date. See 38 U.S.C.A. § 5103A(d)(2)(A)-(C); 38 C.F.R. § 3.159(c)(4)(A)-(C). Accordingly, the Board finds that no further notice or assistance is needed to meet the requirements of the VCAA. With respect to the service connection claim, VA sent pre-adjudication VCAA notice in December 2008. The letter advised the Veteran of what evidence was required to substantiate her claim and of her and VA's respective duties for obtaining evidence. The December 2008 letter provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. Accordingly, the duty to notify has been met. The duty to assist provisions of the VCAA have also been met with respect to the service connection claim. The claims file contains service treatment records (STRs) and reports of post-service VA and private medical treatment. With respect to the claim for service connection for residuals of uterine cancer, a VA examination is not required in this case because the evidence of record contains sufficient competent medical evidence to decide the claim. See 38 C.F.R. § 3.159(c)(4). Specifically, the Veteran's service treatment records are negative for any complaints or findings of uterine cancer. In addition, she has not been diagnosed with uterine cancer or residuals of uterine or any other gynecological cancer at any time during the pendency of the appeal. She did undergo a total abdominal hysterectomy and left salpingo-oophorectomy during service. Her uterus and cervix have been removed via the hysterectomy, and she is already service connected for that disability. The Veteran, as mentioned, had a VA hearing in May 2011 before a local DRO. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the hearing officer's duties under section 3.103(c)(2) are twofold. First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant. Id. at 496. Second, the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id. at 496-97. During the hearing the presiding hearing officer (DRO) reminded the Veteran of the pertinent issues on appeal - her claimed entitlement to service connection uterine cancer and earlier effective dates - and of the relevant regulations. She did not raise any new issues pertaining to this claim during the course of the hearing. See Bryant, 23 Vet. App. at 497-98. Thus, the Board finds that the hearing officer's two-fold duty to inform the Veteran of the outstanding issues relevant and material to the claim and to suggest the submission of evidence when such evidence is missing or has been overlooked has been satisfied. See id. at 496-97. The Veteran has not alleged that there were any deficiencies in the conducting of that hearing related to the hearing officer's duties under section 3.103(c)(2). See Bryant, 23 Vet. App. at 497-98. The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. She has been given ample opportunity to present evidence and argument in support of her claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Walker v. Shinseki, 708 F.3d. 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) ((quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)). Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard. See Walker, 708 F3d. at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show 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." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. The Federal Circuit noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, 708 F3d. at 1336. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation"). Significantly, the Federal Circuit indicated that showing a continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above: " The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added). Id. at 1339. Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Id. at 1338-40. Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "medical nexus of a relationship [sic] between the condition in service and the present condition is required." Id. at *1338; see also id. at 1336, 1340 (holding that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as hearing loss was not among the chronic diseases listed in section 3.309(a)). The Board must assess the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). This evaluation generally involves a three-step inquiry. First, the Board must determine whether the evidence is competent. See, e.g. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Second, the Board must determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). Third, the Board must assess the probative value and weight of the evidence in light of the entire record. Gonzales, 218 F.3d at 1380-81. As observed by the Federal Circuit, lay evidence must "demonstrate some competence." See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted). The Board may therefore discount the probative value of lay evidence if it finds such evidence not to be competent. See id.; see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). However, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and likewise to reject categorically the claimant's testimony on this issue as not competent simply because she was a lay person); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it). Importantly, lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability. See Davidson, 581 F.3d at 1316. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy). For example, the Court has held that a lay person is competent to diagnose a disease with "unique and readily identifiable features" such as varicose veins. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Similarly, the Court has found a lay person competent to identify tinnitus and flat feet, which are disorders that can be identified based on lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). However, lay testimony is not competent with respect to determinations that are "medical in nature" or require medical knowledge due to their complexity. See Barr, 21 Vet. App. at 309. For example, the Court held that a claimant was not competent to determine whether he had rheumatic fever, which was a more medically complex condition. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Federal Circuit has held that lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances: (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007). Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Id. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. Id. The competency of evidence differs from the weight assigned to the evidence, which varies according to its credibility and probative value. See Layno, 6 Vet. App. at 469; accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify."). The Board discounts the weight of evidence it finds not to be credible. See Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). In determining whether statements submitted by a veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Further, the Federal Circuit has held that while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors. See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). Uterine Cancer As noted above, in interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Walker v. Shinseki, 708 F.3d. 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)). The Veteran contends her service-connected hysterectomy, which was performed during service in 1987, was caused by uterine cancer. Prior to her enlistment, an October 24, 1983 medical report from the Medical Center of Beaver County notes she had "many moderately dysplastic cells and a few severely dysplastic cells." A cone biopsy was recommended, but the Veteran enlisted before the procedure could be conducted. Upon enlistment, the Veteran was examined, and no cancer diagnosis was noted. See August 1983 examination. It was noted that she used birth control and had been hospitalized for 7 days for the removal of fallopian tubes in 1978 because of Cytology was negative for malignancy in January 1984 and in September 1984. In December 1985, cytology showed candida species with atypical squamous metaplasia. The Veteran was diagnosed with vaginitis. Mild dysplasia was shown on cytology in June 1986. The Veteran has a colposcopy in November 1986. Squamous atypia was noted in August 1987. The STRs reveal the Veteran had an ectopic pregnancy in August/September 1987. She had complications resulting from this pregnancy and sought treatment in September 1987. See October 1987 treatment record. Upon admission to the hospital, the "plan at the time of admission was to proceed with an apparent exploratory laparotomy." Id. While conducting the laparotomy, "extensive destruction of the posterior wall of the uterus" was revealed. Id. Therefore, the "decision was made to proceed with [a] total abdominal hysterectomy and left salpingo-oophorectomy." Id. This surgery resulted in the removal of the Veteran's uterus, cervix, and left ovary. See September 1987 treatment record. A biopsy was performed subsequent to this surgery, which revealed carcinoma in situ of the cervix. The STRs do not show a diagnosis of uterine cancer. Moreover, the STRs reveal the hysterectomy was performed because of complications from an ectopic pregnancy, not uterine cancer. Carcinoma in situ of the cervix was described as an incidental unforeseen finding after the surgery. The Veteran's post-service treatment records reveal self-reported diagnoses of uterine cancer, but no medical diagnosis of such cancer or any residuals thereof. In her March 2010 DRO hearing, the Veteran confirmed that she does not currently have uterine cancer. Furthermore, she stated that the residuals of such a condition were "not having been able to have any more children." However, she is already service connected for the hysterectomy, which accounts for these reported residuals. Based on the foregoing, the Veteran does not currently have uterine cancer or any residuals of uterine or other gynecological cancer. She did undergo a total abdominal hysterectomy and left salpingo-oophorectomy during service. She was shown to have carcinoma in situ of the cervix after her in-service surgery. Her cervix and uterus were removed via the hysterectomy, and she is already service connected for that disability. She has never been diagnosed as having uterine cancer and there are no current residuals of uterine cancer or any other gynecological cancer. Therefore, she does not have a current disability (apart from her service-connected total abdominal hysterectomy and left salpingo-oophorectomy) and service connection must be denied. Earlier Effective Dates Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation (DIC) based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). If a claim for disability compensation, i.e., service connection, is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2)(i). A review of the claims file reveals that the Veteran filed a claim for service connection that was received on December 4, 2008. She was granted service connection for a total abdominal hysterectomy and left salpingo-oophorectomy and special monthly compensation based on anatomical loss of a creative organ, effective December 4, 2008. She argues she was not informed of her right to file for compensation for this disability until long after her discharge from service, and thus her effective dates should be retroactive to her separation from service. The Veteran first filed her claim on December 4, 2008 and contends in essence that, she was unaware of her entitlement to VA benefits until recently. Under such circumstances, the Board is constrained by the law and regulations governing the establishment of effective dates for the award of compensation. While it is unfortunate that the Veteran may have been unaware of her right to submit a claim for benefits earlier, this has no bearing on the issue. In this case and in accordance with governing law, the earliest effective date of the award of compensation can be no earlier than the date the claim was received, which was December 4, 2008. The record does not show that the Veteran filed a claim for service connection at any point prior to December 4, 2008. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. As, on these facts, no effective date for the grant of service connection for a total abdominal hysterectomy and left salpingo-oophorectomy and special monthly compensation based on anatomical loss of a creative organ (i.e., based upon that underlying service-connected disability), earlier than December 4, 2008, is assignable, the claim for an earlier effective date must be denied. ORDER Entitlement to service connection for residuals of uterine cancer is denied. Entitlement to an effective date earlier than December 4, 2008, for the award of service connection for a total abdominal hysterectomy and left salpingo-oophorectomy is denied. Entitlement to an effective date earlier than December 4, 2008, for the award of special monthly compensation based on anatomical loss of a creative organ is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs