Citation Nr: 1324200 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 07-30 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for residuals of a gynecological disorder, to include hysterectomy. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. DeFrank, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from November 1983 to June 1992 and from September 21, 2001 to September 20, 2002. The Veteran had additional service in the United States Air Force Reserve. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (RO). In a June 2011 decision, the Board in part, remanded this issue for additional development. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's residuals of a gynecological disorder, to include hysterectomy are related to service. CONCLUSION OF LAW The criteria for service connection for residuals of a gynecological disorder, to include hysterectomy, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In this appeal, the RO provided notice to the Veteran in a June 2011 letter that explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The June 2011 letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). After issuance of the June 2011 letter, and opportunity for the Veteran to respond, the June 2012 supplemental statement of the case (SSOC) reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield, 20 Vet. App. at 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service, VA treatment records and the report of August 2006 and November 2011 VA examinations. The most recent November 2011 VA examination report reflects that the VA examiner reviewed the Veteran's past medical history, recorded her current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. As such, the Board finds that the November VA examination report is sufficient upon which to base a decision with regard to this claim. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Also of record and considered in connection with the appeal are the various written statements provided by the Veteran and by the Veteran's representative on her behalf. The Board finds that no additional RO action to further develop the record on the claims is warranted. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Law 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). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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, (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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (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"). The Board has reviewed all the evidence in the Veteran's claims file. 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 his 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). Factual Background The Veteran's service treatment records note that her May 1983 enlistment examination was negative for treatments or complaints related to a gynecological disorder. A February 1986 gynecological evaluation was within normal limits. A January 1988 gynecology report noted a mass in her left uterus that was a probable ovarian cyst. A January 1988 pelvic sonogram noted that the Veteran had a left ovarian cyst measuring 6.3 x 3.5 mms. A March 1988 treatment noted indicated that a normal pelvic sonogram in March 1988 confirmed the resolution of the Veteran's left ovarian cyst. A January 1989 gynecological evaluation was within normal limits. An April 1992 treatment reflected that the Veteran was completing treatment for trichomoniasis. A report of medical examination in March 1997 noted that the Veteran reported that she had a cyst on her ovaries in 1988 which cleared up. On the April 2001 enlistment examination for the Veteran's second period of duty, it was noted that the Veteran had a cyst on her ovary in 1988 but that no surgery was needed and there was no reoccurrence. A January 2002 post-deployment health assessment was negative for treatments or complaints related to a gynecological disorder. An April 2003 VA treatment note indicated that the Veteran presented with intermittent spotting. In February 2004 VA treatment note reported that the Veteran presented with complaints of menorrhagia, pelvic prolapse and chronic pelvic pain. A July 2004 ultrasound of the pelvis revealed that both ovaries demonstrated less than 1cm follicles. An August 2005 ultrasound revealed that the Veteran's left ovary contained 2 small follicular cysts. In September 2005, the Veteran underwent a diagnostic laparoscopy which revealed normal appearing uterus tubes and ovaries. The diagnosis was chronic pelvis pain. In an October 2005 certificate, a private physician noted that he treated the Veteran for complaints of pelvic pain in June 2003. A pelvic ultrasound revealed a 3cm cyst on the left ovary. In October 2005, the Veteran underwent a laparoscopic assisted vaginal hysterectomy. The Veteran underwent a VA examination in August 2006. The examiner noted that the Veteran had had a long history of deep dyspareunia. The Veteran reported that her pelvic pain and dyspareunia were better since her hysterectomy in October 2005. The examiner also noted that in January 1988 she was found to have a 6cm cyst on her left ovary which was identified on an ultrasound examination. 2 months later a repeat ultrasound was completely normal. The diagnosis was normal postoperative gynecological examination status post laparoscopically assisted vaginal hysterectomy for chronic pelvic pain. In a September 2011 letter, a private physician noted that the Veteran underwent a hysterectomy in October 2005 that was not an elective procedure. The Veteran underwent a VA examination in November 2011. The Veteran reported that she began having pelvic pain in the service which began in 1984. She experienced irregular bleeding and pain with intercourse and eventually an ovarian cyst was found. She used oral contraceptives and pain medication throughout the service. She also noted that since her hysterectomy in October 2005, her pain and abnormal bleeding were now "totally gone". The examiner noted that while a January 1988 ultrasound revealed a left cyst, a repeat ultrasound in March 1988 revealed that the previously demonstrated cyst had resolved. In addition, there were multiple reports of medical history where the Veteran did not claim any current gynecological problems but did note that she had a cyst on her ovaries in 1988 that had cleared up in 1988. The examiner opined that the Veteran's hysterectomy or any other gynecological residuals were not etiologically related to the ovarian cysts that were discovered during her active military service. Specifically, her current gynecological problems were not the result of the ovarian cyst found on a January 1988 ultrasound. The examiner noted that there was no doubt from the Veteran's service treatment records that she did have an ovarian cyst in January 1988 which resolved in March 1988. From that time onward, neither her routine gynecological examination visits nor her routine "report of medical history" listed any ongoing problems with ovarian cysts or continuing pelvic pain. The examiner noted that on several of her "report of medical history" the Veteran had herself stated that she had a cyst in January 1988 which had "cleared up". The examiner observed that the gynecologic literature did not note that ovarian cysts in any way caused or exacerbated uterine fibroids or pelvic prolapse. Rather, pelvic organ prolapse was caused by weakness or damage of the pelvis supporting structures. The examiner opined that it was "extremely unlikely" that a single ovarian cyst that resolved without any surgical intervention would be expected to cause the Veteran's uterine disorder that resulted in her hysterectomy. In addition, while there were notes from outside physicians stating that the Veteran had pelvic prolapse and a cystocele, the operative report from the October 2005 hysterectomy showed no surgical intervention to repair a cystocele defect and no attempt at suspending the vaginal vault as would normally be done in a patient with significant pelvic organ prolapse. Also casting doubt into the possibility that her ovaries were causing her pelvic pain was the fact that her ovaries were left in place at the time of the hysterectomy and that the Veteran today stated that since her hysterectomy, her pelvic pain had completely resolved. Finally, the examiner observed that uterine fibroids were quite common in the general population, especially in the African American population and the Veteran's October 2005 hysterectomy report was not consistent with large uterine fibroids. The examiner concluded that the Veteran's hysterectomy or any other gynecological residuals were not caused by or a result of the ovarian cysts that were discovered during her active military duty. Upon review of the record, the Board finds that the preponderance of the evidence is against a finding that her current gynecological disability is related to military service. As there is a current diagnosis of status post hysterectomy, the first element of service connection is satisfied. However, the evidence must establish not only the existence of a disability, but also an etiological connection between military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). The Board acknowledges that the Veteran's available service treatment records demonstrate that a January 1988 pelvic ultrasound revealed a left ovarian cyst. The service treatment records however, are negative for any or diagnoses of any chronic gynecological disorders as the ovarian cyst complaints were medically addressed in service, and appear to have been of an acute and transitory nature. Significantly, a March 1988 treatment noted indicated that a normal pelvic sonogram in March 1988 confirmed the resolution of the Veteran's left ovarian cyst. Further, there is no competent evidence or opinion even suggesting that there exists a medical nexus between a current gynecological disability and the Veteran's military service. In fact, the only medical opinion addressing the etiology of the gynecological disability weighs against the claim. As indicated above, the November 2011 VA examiner opined that the Veteran's hysterectomy or any other gynecological residuals were not caused by or a result of the ovarian cysts that were discovered during her active military duty. None of the competent medical evidence currently of record refutes this conclusion, and neither the Veteran nor her representative have presented or identified any such existing medical evidence or opinion. Given that the most probative opinion is against a finding of a relationship between a gynecological disorder and service, the Board finds that service connection is not warranted. In reaching this conclusion, the Board has again considered the lay evidence offered by the Veteran and her representative to VA. This includes her and her representative's statements in which they asserted their belief that her claimed gynecological disability is related to her service. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995). However, lay persons are generally not competent to opine as to medical etiology or render medical opinions. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007) ("Sometimes the layperson will be competent to indentify the condition where the condition is simple, for example a broken leg, and sometimes not, for example a form of cancer."). That is, the Veteran is competent to report that she has gynecological symptoms; however, she is not competent to state that her gynecological disability is the result of his service. While the Veteran is competent to report symptoms such as pelvic pain, the record does not reflect any complaints or treatment for a gynecological condition following the assessment of an ovarian cyst in service. In fact during her report of medical examination in March 1997 she specifically noted that her ovarian cysts that were identified in January 1988 were "cleared up". Accordingly, the Board has placed greater probative weight on the conclusions reached by the November 2011 VA examiner, who, as a medical professional, is competent to render opinions regarding medical matters. As the preponderance of the evidence is against the Veteran's claim, service connection must be denied. 38 C.F.R. §§ 3.1(m) & (n), 3.102, 3.301. ORDER Entitlement to service connection for residuals of a gynecological disorder, to include hysterectomy is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs