Citation Nr: 1323012 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 08-02 171 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a gynecologic disorder, to include uterine fibroids, ovarian cysts and endometriosis. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from October 1989 to March 1993. Additionally, the Veteran had a reserve component service prior to the period of active duty, including a period of initial active duty for training from September 1985 to December 1985; other reserve service is unverified. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California which, in pertinent part, denied the Veteran's claims for service connection for ovarian cysts and rule-out endometriosis. A review of the Virtual VA claims processing system reveals VA treatment records dated through February 2013; such records were considered by the Appeals Management Center (AMC) in February 2013 supplemental statement of the case (SSOC). In January 2011, the Veteran testified before the undersigned Veterans Law Judge at a RO (Travel Board) hearing. A hearing transcript has been associated with the claims file. In September 2011 and November 2012, the Board remanded the instant claim to the AMC for additional development and adjudication. As a final preliminary matter, the Board notes that it has recharacterized the instant matter to include uterine fibroids so as to more accurately reflect the evidence of record and the Veteran's complaints of symptomatology as well as to comport with the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009). FINDINGS OF FACT 1. The evidence of record does not substantiate or establish the existence of a current endometriosis. 2. The preponderance of the evidence is against a finding that the Veteran currently suffers from a gynecological disorder, to include uterine fibroids or ovarian cysts, as a result of a disease or injury incurred in active duty service. CONCLUSION OF LAW A gynecological disorder, to include uterine fibroids, ovarian cysts and endometriosis, was not incurred in or aggravated by the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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; and (3) that the claimant is expected to provide. Prior to initial adjudication of the Veteran's claim decided herein, a letter dated in June 2006 fully satisfied the duty to notify provisions as to claim for service connection. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. Since the Board has concluded that the preponderance of the evidence is against the claim for service connection for a gynecologic disorder, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate her claim, as well as the avenues through which she might obtain such evidence, and of the allocation of responsibilities between herself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. The Board also concludes VA's duty to assist has been satisfied. The evidence of record includes the service treatment records, VA outpatient treatment records, various private treatment records and the VA examination reports. An October 2011 response from the VA Medical Center (VAMC) in Loma Linda indicated that there were no records related to the Veteran for the time period between January 2007 and February 2008. Additionally, the Veteran was afforded VA examinations in order to adjudicate her claim for service connection. In this regard, the Board notes that the January 2013 VA examiner offered an etiological opinion as to the claimed disorder and based her conclusions on the existing medical evidence and the other evidence of record. Moreover, such opinion offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). As such, the Board finds that the opinion proffered by the VA examiner is sufficient to assist VA in deciding the instant claim for service connection. Additionally, the Board finds there has been substantial compliance with its September 2011 and November 2012 remand directives. The Board notes that the Court has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.) The record indicates that the AMC scheduled the Veteran for a VA gynecologic examination, which she attended, and that her updated VA treatment records were obtained. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remands. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that any Veterans Law Judge who chairs a hearing fulfill two duties to comply with the VCAA. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant, 23 Vet. App. at 488. Here, during the January 2011 hearing, the undersigned Veterans Law Judge enumerated the issue on appeal. Also, information was solicited regarding the etiology of the Veteran's claimed disorder, to include the Veteran's allegations that it is related to her in-service complaints of abdominal pain as well as vaginal itching and irritation. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. Id. at 497. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). The Veteran has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of her claim such that the essential fairness of the adjudication is not affected. II. Service Connection A. Applicable Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). In a recent decision, the United States Court of Appeals for the Federal Circuit (the Federal Circuit) determined that such an alternative method can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board notes that uterine fibroids, ovarian cysts or endometriosis are not a listed as a chronic diseases under 38 C.F.R. §§ 3.307(a), 3.309(a). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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 profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.") Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. B. Gynecologic Disorder The Veteran contends that her in-service gynecological and abdominal pain complaints were symptoms of her uterine fibroids, ovarian cysts and endometriosis diagnosed after service. A July 1985 National Guard entrance examination found the Veteran's uterus to not be enlarged and noted that there were no abnormal masses; the examination was otherwise negative for any relevant abnormalities. The Veteran denied having been treated for a female disorder in an accompanying Report of Medical History (RMH). A provisional diagnosis of rule-out vaginitis was made in September 1985 following complaints of low abdominal pain, discharge and itching. An October 1989 service entrance examination was negative for any relevant abnormalities and the Veteran denied having been treated for a female disorder in an accompanying RMH. Non-specific vaginitis was assessed in July 1990. In June 1992, a provisional diagnosis of endometriosis versus ovarian cysts was made. Possible ovarian cysts were assessed in August 1992 and pelvic pain was noted in September 1992. A diagnostic laparoscopy was performed in October 1992 and revealed no evidence of endometriosis or significant adhesive disease and her ovaries were noted to be normal. Following this laparoscopy, a discharge diagnosis of chronic pelvic pain was made. An October 1993 service discharge examination noted that the Veteran's pelvic examination was otherwise normal and was negative for any relevant abnormalities. In a discharge RMH, the Veteran denied having been treated for a female disorder. Post-service treatment records note impressions of vaginitis and recurrent bacterial vaginitis in March 2004, uterine fibroids in May 2005 and abdominal pain secondary to ovarian cysts in September 2005. Two fibroids within the uterus and multiple bilateral ovarian cysts were found in a June 2004 VA ultrasound while a right corpus luteum cyst and multiple bilateral follicular cysts were found in a December 2004 ultrasound. A November 2005 VA ultrasound revealed uterine leiomyomata and heterogeneity of the uterus. The Veteran underwent a hysterectomy in October 2006. During a January 2011 hearing, the Veteran testified that her in-service gynecological symptoms and abdominal pain resulted in her post-service hysterectomy. A November 2011 VA examination reflected the Veteran's reports of in-service right pelvic pain, cramping, heavy bleeding and clots with her menstrual cycle as well as right lower pelvic pain outside of her menstrual cycle. Although an in-service ultrasound and laparoscopy were normal, she reported that she was told in 2003 that she had uterine fibroids and underwent a supracervical hysterectomy in 2006. Her abdominal pain was reported to have continued after the 2006 hysterectomy. Following a physical examination and a review of the Veteran's claims file, diagnoses of uterine fibroids, ovarian cysts and a hysterectomy were made. The examiner opined that the Veteran's ovarian cysts were less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness as there was no diagnosis of ovarian cysts during service. The examiner noted that the Veteran did not have a uterus, fallopian tubes or ovaries due to a supracervical hysterectomy in 2006 and hence did not have current ovarian cysts. In addition, the examiner noted that although the Veteran had a clinical diagnosis of endometriosis based on her symptoms, she did not have a history of a laparoscopic diagnosis and her hysterectomy tissue findings were negative. The examiner further opined that laparoscopy was the "gold standard" for establishing the diagnosis of endometriosis and that her 1992 laparoscopy was normal. Moreover, the examiner noted that while the Veteran felt that her pelvic pain was secondary to endometriosis, she did not have a current diagnosis or history of endometriosis. A January 2013 VA Disability Benefits Questionnaire (DBQ) report, drafted by the same examiner who had conducted the January 2011 VA examination, indicated that the Veteran's claims file had been reviewed, as well as the available records, using the Acceptable Clinical Evidence (ACE) process as the existing medical evidence provided sufficient information on which to prepare the report. The examiner opined that the Veteran's claimed conditions were less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness as the Veteran had normal in-service gynecological examinations, radiographic testing and laparoscopic testing. The examiner noted that the Veteran first developed fibroids in 2004, more than 10 years after service, and had a hysterectomy secondary to the fibroids and possible endometriosis. However, endometriosis was not found on total abdominal hysterectomy (TAH) and a cyst was noted in the service records but this was a clinical diagnosis based on symptoms. In addition, the examiner noted that ovarian cysts found on a hysterectomy/bilateral salpingo-oophorectomy (BSO) were benign and correlated with menstrual changes. The examiner found that the vaginal itching noted in the service treatment records was not chronic, was likely related to menstrual cycle changes and a topical cream was given once for irritation with no obvious infection. The examiner further opined that the Veteran's in-service chronic pelvic pain, lower abdominal pain and vaginal itching were not casually or etiologically related to her post-service ovarian cysts, fibroids, recurrent vaginitis or hysterectomy as her in-service gynecological examinations and testing were negative for these conditions or the etiology of her pelvic pain. Finally, the examiner noted that while she thought the Veteran's pelvic pain was cyclical at the previous examination, the Veteran had complained of pain outside of her menstrual cycle. An internet article submitted by the Veteran described the hysterectomy procedure, the indications for a hysterectomy and the risks and side effects of a hysterectomy. As an initial matter, the Board finds that the Veteran has a current diagnosis of a gynecological disorder, namely uterine fibroids and ovarian cysts. While she has also claimed service connection for endometriosis, such has not been diagnosed at any time during the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement 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 if the disability resolves prior to the adjudication of the claim). In addition, while there are notations in some VA treatment records indicating that the Veteran suffered from endometriosis by history or that her 1996 hysterectomy was performed as a result of endometriosis, such notations were based on the Veteran's subjective reports rather than objective clinical findings and do not constitute a diagnosis of endometriosis. Notwithstanding the Veteran's documented in-service complaints of abdominal pain and various gynecological symptoms, the Veteran's service discharge examination reflects that her pelvic examination was normal and was otherwise negative for any relevant abnormalities. With respect to post-service medical records, the first evidence of a gynecological disorder was in a March 2004 VA treatment note. As noted above, there is nothing in the Veteran's service records to indicate that a gynecological disorder, to include uterine fibroids and ovarian cysts, had its onset during service or shortly after service. Rather, the first medical evidence of such gynecological disorder was in 2004, approximately 11 years after the Veteran separated from service. The Board points out that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Moreover, the probative evidence of record fails to demonstrate that the Veteran's uterine fibroids and ovarian cysts are related to her service. In this regard, the Board places great probative weight on the VA examiner's opinion that the Veteran's uterine fibroids and ovarian cysts were less likely than not related to her service as she developed fibroids more than 10 years after service and that her in-service ovarian cysts were benign and correlated with menstrual changes. This examiner's opinion had clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. Accordingly, as the probative evidence of records demonstrates that the current gynecological disorders are not related to service, service connection is not warranted. Furthermore, as for any direct assertions by the Veteran and/or her representative that there exists a medical relationship between the Veteran's gynecologic disorder and service, the Board finds that no such assertions provide persuasive evidence in support of the claim. The matter of the etiology of the disability here at issue is one within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As none of the identified individual is shown to be other than a layperson without the appropriate training and expertise, neither is competent to render a probative (i.e., persuasive) opinion the medical matter upon which this claim turns. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ('a layperson is generally not capable of opining on matters requiring medical knowledge'). Hence, the lay assertions of medical nexus have no probative value. In addition, the Veteran submitted an article which addressed the indications, benefits, risks and side effects of a hysterectomy. The Court has held that such a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Sack v. West, 11 Vet. App. 314 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998) (medical treatise evidence discussed generic relationships with a degree of certainty to establish a plausible causality of nexus), and Mattern v. West, 12 Vet. App. 222, 228 (1999). Here, however, the submitted information does not speak to the specifics of this case in that it does not address the etiology of uterine fibroids and ovarian cysts. The article is further unaccompanied by any medical opinion linking the Veteran's service to her post-service uterine fibroids and ovarian cysts. This article therefore lacks probative value. Finally, a gynecologic disorder, to include uterine fibroids and ovarian cysts, may not be presumed to have been incurred during service here as they did not manifest to a compensable degree within one year of separation from active duty. For all the foregoing reasons, the claim for service connection for a gynecologic disorder, to include uterine fibroids, ovarian cysts and endometriosis, must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a gynecologic disorder, to include uterine fibroids, ovarian cysts and endometriosis, is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs