Citation Nr: 1323497 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 09-16 075 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for polycystic ovarian syndrome, to include as due asbestos exposure. REPRESENTATION Veteran represented by: National Association of County Veterans Service Officers WITNESSES AT HEARING ON APPEAL The Veteran and her husband ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from June 2002 to July 2002 and from March 2003 to December 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2011, the Veteran and her husband (then fiancé) testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. In March 2012 and January 2013, the Board remanded the case for additional development. It now returns for further appellate review. FINDINGS OF FACT 1. The most probative evidence indicates the Veteran does not have a clinical diagnosis of polycystic ovarian syndrome. 2. The preponderance of the probative evidence indicates that the Veteran does not have a current gynecological diagnosis that is related to service. CONCLUSION OF LAW The requirements for establishing service connection for polycystic ovarian syndrome, to include infertility, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence she is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this case, a July 2008 letter sent prior to the decision on appeal provided notice regarding what information and evidence is needed to substantiate her claim for service connection, including as due to asbestos exposure, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. It also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include some of the Veteran's service treatment records (STRs), VA treatment records, and a VA examination report. The Board notes that not all of the Veteran's STRs have been obtained. The record reflects that these records were requested from several sources and that they were unable to be obtained. The Veteran herself provided some of the STRs. Further attempts to obtain such records would be futile. Pursuant to the March 2012 remand directives, the Veteran was advised in a March 2012 letter to identify any non-VA medical providers who may possess relevant treatment records. The Veteran did not respond to the letter. Pursuant to the March 2012 and January 2013 remand directives, VA treatment records from the Philadelphia VA Medical Center (VAMC) dated April 2011 through February 2013 were obtained. Also pursuant to the January 2013 remand, the Veteran was afforded a VA gynecological examination in May 2013. This examination and opinion considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issue decided herein has been met. The Board finds that there has been substantial compliance with the March 2012 and January 2013 remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (where there is substantial compliance with the Board's remand instructions a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran has been afforded a hearing before a VLJ in which she presented oral argument in support of her service connection claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, during the hearing, both the VLJ and the Veteran's representative asked specific questions directed at identifying whether the Veteran met the criteria for service connection. Moreover, the Veteran volunteered her treatment and symptom history. In addition, the VLJ asked clarifying questions regarding where and by whom treatment was provided in order to identify any pertinent evidence not currently associated with the claims folder. On remand the VLJ provided the Veteran an opportunity to provide the names of her treatment providers so that those records might be obtained. Additionally, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim for service connection. As such, the Board finds that there is no prejudice to the Veteran in deciding this case and that no further action pursuant to Byrant is necessary. As discussed above, the Veteran was notified and aware of the evidence needed to substantiate her claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. The Veteran was provided with a meaningful opportunity to participate in the claims process and has done so by providing evidence and argument and reporting for examination and hearing. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Veteran seeks service connection for polycystic ovarian syndrome (PCOS). In documents of record she contends that her claimed condition is related to her service, to include asbestos exposure. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). When there is evidence that a Veteran's STRs have been lost or destroyed, as is the case here, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist a claimant in developing a claim, and to explain its findings and conclusions. Russo v. Brown, 9 Vet. App. 46, 51 (1996); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). STRs show that the Veteran was treated in 2002 for bacterial vaginosis and in 2005 for Chlamydia. There are no other gynecological complaints or treatment in the STRs. VA treatment records show that at various times since service, the Veteran has been diagnosed with histories of ectopic pregnancies, irregular menses, abdominal pain and cramping, and difficulty conceiving. In December 2007, a VA physician at a Women's Health follow-up noted "concern for PCOS" but did not diagnose that condition. In March 2008 a Women's Health outpatient note states that the Veteran reported that her gynecologist felt a diagnosis of PCOS was likely, but the physician noted that this was not in the gynecologist's treatment note. That physician stated that the working diagnosis of PCOS had questionable compatibility with imaging studies and indicated that she did not find it the likely diagnosis. In June 2009, a VA surgeon conducted a Women's Health Consult and listed possible etiologies of the Veteran's chronic pelvic pain: adhesions, chronic pelvic inflammatory disease (PID), and endometriosis. The surgeon performed a diagnostic laparoscopy, chromopertubation, and lysing of adhesions. The surgeon found partial right salpingectomy (fallopian tube removal) for prior ectopic pregnancy and adhesions with likely distal occlusion of left fallopian tube. In November 2009 the Veteran was treated for another ectopic pregnancy. In May 2010 a CT scan of the pelvis showed no masses, intra- or extra-uterine. In September 2011 a VA treatment note shows continued long history of irregular menses and abdominal pain. The May 2013 VA examiner provided a very thorough summary of the Veteran's gynecological medical history. She noted that prior to service, in 2001, a (presumably right) laparoscopic salpingostomy was performed to treat a tubal ectopic pregnancy. The Veteran was not seen by a gynecologist at the VA until early 2008. The examiner clarified that the March 2008 workup checked hormone levels and included a second ultrasound to rule out PCOS. That ultrasound was within normal limits, as were her hormones, and there was no further discussion of PCOS being the cause of the Veteran's infertility. The second tubal ectopic pregnancy (this time on the left) in October 2009 led to the emergency room visit for acute pelvic pain and diagnostic laparoscopic surgery that culminated in the left salpingectomy, removal of adhesions, and formal diagnosis of infertility in October 2009. The Veteran was informed that in order to conceive in the future, she would likely have to undergo additional surgery or in vitro fertilization. The examiner noted that currently, the Veteran has no gynecological symptoms. Based on her physical examination and the Veteran's gynecological history, the VA examiner opined that the Veteran has no current or past diagnoses of PCOS. The VA examiner found that complications of ectopic pregnancies resulted in conditions of the fallopian tubes, with the left tube removed in 2009 and the right tube at least partially occluded. She is also diagnosed with the condition of infertility, resulting from these complications of ectopic pregnancies. Based on the foregoing, the VA examiner opined that the Veteran's infertility is not likely due to her military service. The Board finds that the examiner's opinion is based on adequate examination and provides a clear conclusion supported by specific data in the record, with a reasoned medical explanation connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds that it is probative, as it was predicated upon a thorough, accurate review of the record as well as physical examination of the Veteran, and is supported by a sufficient rationale, relying on and citing to the records reviewed. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1110 requires existence of present disability for VA compensation purposes). In the absence of evidence of diagnosed PCOS during the course of the claim, there is no reasonable basis to establish service connection for that disability. The evidence does show a current diagnosis of infertility. However, the medical evidence is against a finding that the infertility is related to service. In this regard, the VA examiner found such infertility is due to ectopic pregnancies occurring before and after service. There is no competent evidence showing a current gynecological disability that is related to service. The Board notes that the Veteran has alleged that her PCOS is related to her military service, to include asbestos exposure. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In this case, there is no documentation of exposure to asbestos. To the extent the Veteran contends that she suffers from PCOS or other gynecological conditions that are due to service, the diagnosis of gynecological disorders and question of whether they are due to asbestos exposure or service falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran is not shown to possess the medical knowledge to diagnose gynecological disorders or to link such to any specific instance of her military service, including the claimed asbestos exposure. As such, the Board accords significantly more weight to the opinion of the VA examiner, who concluded the Veteran does not have PCOS, and that her infertility is not related to service. Based on the foregoing, the Board concludes that the preponderance of the probative evidence is against a finding that the Veteran suffers from a gynecological disability that is related to service, and the claim is denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for gynecological disability. As such, that doctrine is not applicable in the instant appeal, and her claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for polycystic ovarian syndrome, to include infertility, is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs