Citation Nr: 1323895 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 04-33 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for atypical squamous cells of undetermined significance (ASCUS) (claimed as abnormal colposcopy with cell abnormalities and abnormal Papanicolaou (Pap) smears). ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from December 1972 to October 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, denied service connection for ASCUS (claimed as abnormal colposcopy with cell abnormalities and abnormal Pap smears). The claim on appeal was previously before the Board in July 2006, October 2010, and February 2012, when it was remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. On each occasion, the AMC confirmed and continued the prior denial and returned the case to the Board. In January 2013, the Board requested an expert medical opinion from the Veterans Health Administration, pursuant to 38 U.S.C.A. § 7109 (West 2002) and 38 C.F.R. § 20.901 (2012). Clarification of the opinion was sought in March 2013. In April 2013, the Board provided copies of the opinions to the Veteran and informed her of her right to submit additional evidence or argument within 60 days. No response has been received. The Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA) file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The Veteran does not allege, and the evidence does not show, that she has a current disability attributable to ASCUS. CONCLUSION OF LAW The criteria for an award of service connection for ASCUS (claimed as abnormal colposcopy with cell abnormalities and abnormal Pap smears) have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks to establish service connection for ASCUS (claimed as abnormal colposcopy with cell abnormalities and abnormal Pap smears). She does not contend that she has any current functional impairment attributable to ASCUS. Rather, she believes that service connection is in order because "[c]ellular abnormalities can be or become cancer." See VA Form 9 (Appeal to Board of Veterans' Appeals), dated September 2004. I. Preliminary Considerations On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)). The VCAA imposes obligations on VA in terms of its duty to notify and assist claimants. A. The Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (now codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA ask the claimant to provide any pertinent evidence in his possession). Ordinarily, notice with respect to each of these elements must be provided to the claimant prior to the initial unfavorable decision by the agency of original jurisdiction (AOJ). In the present case, the Board finds that VA has satisfied its duty to notify. By way of letters sent to the Veteran in April 2002 and August 2006, the AOJ informed her of the information and evidence necessary to substantiate her claim for service connection. She was also informed of the manner in which ratings and effective dates are assigned for awards of disability benefits. Although some of the required notice was not supplied until after the Veteran's claim was initially adjudicated, the claim was subsequently readjudicated in May 2008, October 2011, and October 2012 supplemental statements of the case, thereby correcting any defect in the timing of the notice. See, e.g., Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). No further corrective action is necessary. B. The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). In the present case, the Board finds that the duty to assist has been fulfilled. The Veteran's service treatment records have been obtained, as have records of relevant post-service VA and service department medical care. She has been examined (to include in January 2003 and December 2007), and an expert medical opinion has been obtained with respect to the nature and etiology of the condition here at issue. Inasmuch as the medical opinion is based on a review of the record, and contains a rationale for the conclusions offered, the Board finds the opinion adequate. The requirements of the Board's prior remands have been satisfied, and the Veteran has not identified, or provided releases for, any additional evidence that needs to be procured. No further development action is required. II. The Merits of the Veteran's Appeal Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order for service connection to be granted, there must be competent evidence in the record to demonstrate that the claimant has a current disability. See, e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998), cert. denied, 526 U.S. 1144 (1999); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, the tinnitus (ringing in the ears) already mentioned, etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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 (1990). In the present case, the Veteran's service treatment records reflect that she was found to have abnormal Pap smears on in-service testing in February 1999 and February 2000. In February 1999, it was noted that a smear revealed ASCUS. In February 2000, it was noted that a smear, which was limited by an air drying artifact, revealed epithelial cell abnormalities and ASCUS. Other Pap smears during service-in August 1999, July 2000, and January 2001-were noted to be normal. Pathological examination of tissues obtained by way of colposcopy and endocervical curettage (ECC) in July 2000 revealed benign fragments of endocervical glands and squamous epithelium. There was no evidence of dysplasia or malignancy. After service, in October 2003, the Veteran had another Pap smear that was interpreted to reveal ASCUS. Testing for human papilloma virus (HPV) was negative. A Pap smear in November 2004 was interpreted to reveal inflammatory associated cellular changes, but no intraepithelial lesion or malignancy. On VA gynecological examination in December 2007, the Veteran reported a history of abnormal Pap smears with ASCUS. It was noted that a Pap smear in January 2007 was negative for intraepithelial lesion or malignancy, with an atrophic pattern and non-neoplastic findings. The pertinent diagnostic assessment was "[n]o objective findings of cervical dysplasia at this time." In March 2012, a VA physician noted that a Pap smear in February 2012 had been interpreted as normal. After reviewing the Veteran's claims file, the physician opined, in effect, that it was at least as likely as not (i.e., 50 percent or more probable) that the ASCUS noted in October 2003 was related to service. The physician noted, however, that the Veteran was not presently shown to have a pathological condition or medical disorder of the cervix, to include atypical cells. In January 2013, the Board sought an advisory medical expert opinion from a gynecologist. The Board asked the gynecologist whether an abnormal Pap smear, interpreted to show ASCUS, was generally indicative, in and of itself, of the fact that a disease or disability was present, or whether it was more in the nature of a laboratory finding. The Board also asked whether it was at least as likely as not that the Veteran currently had, or had had at any time since November 2001 (when she filed her claim for service connection), a chronic disability associated with the abnormal Pap smears. In response to the Board's request, the medical expert responded that there was no abnormality of the Veteran's cervix "at present." Accordingly, it was less likely than not (i.e., less than 50 percent probable) that the Veteran had a current disability of the cervix that could be attributed to service. In March 2013, the Board sought clarification of the medical expert's opinion. The Board pointed out, in part, that the proper question to be addressed was not whether the Veteran had a disability of the cervix "at present," but rather, whether she had had at any time since November 2001 a chronic disability associated with the abnormal Pap smear noted in October 2003, or whether the abnormal Pap smear in October 2003 was more in the nature of a laboratory finding only, with no corresponding chronic disability identified. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In response to the Board's request, the medical expert responded as follows: The abnormal Pap smear of 10-2003 showed ASCUS of the veteran's cervix (non-cancerous changes). ASCUS of the cervix is due to normal cell repair. These findings required a follow up Pap smear which was subsequently completed and found to be normal. The finding of ASCUS on the 10-2003 Pap smear does not represent a disability or disease. It is only a laboratory finding. There was no disability or disease found with the Pap smear from 10-2003. It is less likely as not (less than 50/50 probability) that the veteran has had at any time since 11-2001 a chronic disability associated with the abnormal Pap smear completed in 10-2003. The abnormal Pap smear does not reflect the presence of chronic disability or manifestation of any underlying disability being present at any time since 11-2001. The abnormal Pap smear was a laboratory finding showing normal cell repair with no corresponding chronic disability identified. There is no scientific evidence or medical research indicating an ASCUS such as this causing a disability or disease. Following a review of the evidence in this case, and the applicable law and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for ASCUS (claimed as abnormal colposcopy with cell abnormalities and abnormal Pap smears). As outlined above, it is clear from the evidence that the Veteran has had abnormal Pap smears in the past, interpreted to reveal ASCUS. However, as noted by the VHA medical expert, abnormal Pap smears are in the nature of laboratory findings, and do not constitute disabilities in and of themselves. See also Schedule for Rating Disabilities; Gynecological Conditions and Disorders of the Breast, 60 Fed. Reg. 19851, 19853 (Apr. 21, 1995) (Supplementary Information) (indicating that "cervical dysplasia is not itself a disability . . ."). Here, the record is absolutely devoid of any evidence that the Veteran has, or has had, a disability of the cervix associated with abnormal Pap smears at any time since she filed her claim for service connection in November 2001. To the contrary, the evidence affirmatively establishes that no such disability is present. The Board is sympathetic to the Veteran's concern that she may be diagnosed with a disability of her cervix, such as cancer, at some point in the future. However, there is no suggestion on the current record-whether by lay evidence or otherwise-that any such disability is, or has been, present at any time pertinent to this appeal. Her claim for service connection must therefore be denied. ORDER Service connection for ASCUS (claimed as abnormal colposcopy with cell abnormalities and abnormal Pap smears) is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs