Citation Nr: 1325454 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 08-33 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a hysterectomy with residual scars. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from August 1986 to December 1986 and from November 1990 to June 1991 with active duty for training from April 1989 to June 1989, and additional service in the Army National Guard until June 2005. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board remanded the case in May 2011 and November 2011 for additional development that included a request for a VA examination and medical opinion based on additional evidence of record, to include private operative reports from a November 2002 hysterectomy. This was accomplished, and the Board concludes that it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). FINDINGS OF FACT 1. The Veteran was treated for cervical intraepithelial neoplasia (CIN) III in service with two cone biopsies and a dilation and curettage, and she was treated for pelvic inflammatory disease. 2. The Veteran had a post-service hysterectomy in November 2002. 3. A hysterectomy with claimed residual scars is not etiologically related to symptoms, findings, or treatment in service. CONCLUSION OF LAW The criteria for service connection for hysterectomy with residual scars are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In an October 2007 letter, the RO provided preadjudicatory notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection on the merits, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The VCAA notice letter included provisions for disability ratings and for the effective date of the claim. The Veteran was afforded a VA examination in June 2011 with a March 2012 addendum opinion to address her claimed hysterectomy. January 2013 and May 2013 Veterans Health Administration (VHA) medical expert opinions are also of record. 38 C.F.R. § 3.159(c)(4) (2012). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination and the opinions of record are adequate. A physical examination was completed in June 2011. In March 2012, the VA examiner provided an opinion based on a discussion of pertinent findings in service treatment records and a medical history shown in post-service treatment records. January 2013 and May 2013 VHA opinions clarified whether findings in service led to conditions necessitating a post-service hysterectomy. The Board finds that the March 2012 VA opinion and VHA opinions were based on an accurate factual background consistent with the Board's own findings in this case. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis); see also Nieves-Rodriguez, 22 Vet. App. at 295 (holding that "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion"). The Board finds that, cumulatively, the examination opinions obtained complied with May 2011 and November 2011 Board remand directives and adequately considered pertinent evidence of record, to include private operative reports from a November 2002 hysterectomy. See Stegall v. West, 11 Vet. App. at 270 (holding that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue of a low back disability has been met. 38 C.F.R. § 3.159(c)(4). The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, a VA examination report, VA and VHA opinions, pre-service and post-service treatment records, the Veteran's lay statements, and testimony from an April 2009 hearing before a decision review officer (DRO). The Veteran and her representative have not identified any outstanding evidence that needs to be obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air 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 the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, endometriosis and pelvic adhesions which lead to a post-service hysterectomy are not "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) based on chronic in service symptoms and continuous post-service symptoms do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Active military, naval, or air service includes any period of active duty for training (ADT) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty training (IADT) during which the individual concerned was disabled or died from an injury incurred in or aggravated in the line of duty. 38 U.S.C.A. § 101(21) and (24) (West 2002); 38 C.F.R. § 3.6(a) and (d) (2012). ADT includes full-time duty performed for training purposes by members of the Reserves and National Guard of any state. 38 U.S.C.A. § 101(22) (West 2002); 38 C.F.R. § 3.6(c)(1) and (3) (2012). Presumptive periods do not apply to ADT or IADT. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Thus, service connection may be granted for a disability resulting from a disease or injury incurred or aggravated while performing ADT, or from an injury incurred or aggravated while performing IADT. 38 U.S.C.A. §§ 101(24), 106, 1131 (West 2002). A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If a disorder was not "noted" on entering service, the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the preexisting condition." 38 U.S.C.A. § 1111; 38 C.F.R. § 3.306; Wagner, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Wagner, 370 F.3d at 1097. In explaining the meaning of an increase in disability, the Court has held that "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Of note is that the burdens and evidentiary standard to determine whether conditions noted at entrance into service were aggravated by service are different than the burdens and evidentiary standard to determine whether conditions not noted at entrance into service were aggravated. If a preexisting condition noted at entrance into service is not shown to have as likely as not increased in severity during service, the analysis stops. Only if such condition is shown by an as likely as not standard to have increased in severity during service does the analysis continue. In such cases, the increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Service Connection Analysis The Veteran contends that a November 2002 hysterectomy with residual scars is related to service, specifically, that cone biopsies and a dilation and curettage performed for the treatment of CIN III in service contributed to the need for a post-service hysterectomy. After reviewing all the lay and medical evidence, including the Veteran's statements, the Board finds that the weight of the evidence demonstrates that a November 2002 hysterectomy with claimed residual scars is not etiologically related to symptoms, findings, or treatment in service. At the outset, it is noted that the Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81(Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate. The Veteran has currently diagnosed residuals of a post-service hysterectomy. The November 2002 operative report indicated a post-operative diagnosis of menometrorrhagia with pelvic pain syndrome and possible symptomatic persistent recalcitrant pelvic adhesions. The operative report also revealed the presence of "abundant" adhesions around the exterior bladder flap and parametrial areas inferiorly and moderate amounts around the peritubal areas bilaterally. During an April 2009 DRO hearing, the Veteran reported that she was diagnosed with CIN and pelvic inflammatory disease in service. She reported that CIN was identified on a December 1990 Pap smear, that she had a cone biopsy for removal of CIN and a subsequent cervical laparoscopy in June or July 1991. The Veteran asserted that the 2002 hysterectomy was performed due to the presence of scar tissue. She contends that her hysterectomy was the result of procedures performed in service for the treatment of CIN. She testified that her obstetrician told her that her cervix was badly scarred and that this was the cause of her pain. The Board finds that gynecological complaints were not indicated during the Veteran's first period of service from August 1986 to December 1986. Additionally, the Board finds that a gynecological disability was not "noted" at service entrance in November 1990. An enlistment examination was not completed in November 1990; however, an August 1990 report of medical examination did not reflect any gynecological problems or complaints relating, and the examination report shows that a July 1990 Pap smear was normal. Therefore, the Board finds that the presumption of soundness, with regard to a gynecological disability, at service entrance in November 1990 attached. See 38 U.S.C.A. § 1111. Service treatment records show that the Veteran was seen for abdominal pains during her second period of service. An abnormal Pap smear revealed cellular changes of human papillomavirus (HPV) associated with CIN III in December 1990. She had a cone biopsy and underwent a dilatation and curettage in January 1991 for diagnosis and treatment of CIN III. An April 1991 separation examination noted that the Veteran had a cone biopsy, dilation and curettage, and a laparoscopy in service. Clinical records reflect a diagnosis of pelvic inflammatory disease in May 1991. The Veteran had diagnostic laparoscopy in July 1991, also identified in an August 1991 follow-up treatment report as a repeat conization. While possible endometriosis was identified in a January 1989 treatment report, dated prior to the Veteran's second period of service, the diagnosis was not confirmed. A June 1991 service treatment record noted past diagnoses for possible endometriosis, and noted that a laparoscopy was recommended for the evaluation for possible endometriosis. However, the June 1991 report shows that the Veteran underwent a colposcopy in June 1991, which was negative for endometriosis. Because endometriosis was not identified on a June 1991 coloscopy or on a July 1991 laparoscopy performed in service, the Board finds that the weight of the evidence shows that the Veteran did not have endometriosis in service. The Veteran was seen for fertility treatment post-service and was treated for complaints related to vaginal bleeding and abdominal pain. A September 2000 operative laparoscopy, dated approximately nine years after service separation, identified a diagnosis of mild endometriosis as well as scarring in the area of the right adnexa; this was freed. A subsequent October 2000 laparoscopy showed some adhesions in the laparoscopy scar. No endometriosis was seen. A June 2011 VA examination included a physical examination. The Veteran reported that she had painful cycles and heavy bleeding with blood clots, and that she was told in 1996 that she would need a hysterectomy due to these symptoms. The Veteran's medical history was discussed, and she was diagnosed with status post total abdominal hysterectomy with bilateral salpingo-oophorectomy for pain, dysmenorrheal, and menorrhagia, a history of severe dysplasia with two cervical conizations, and a history of infertility. The VA examiner stated that the Veteran developed severe cervical dysplasia and underwent a cervical conization in 1991 during service. The Veteran reported having painful periods (dysmenorrheal) and heavy mensis (menorrhagia) that predated her military service. She reported developing cervical pain after her first cervical conization. However, because the November 2002 operative report was not available to the examiner, the VA examiner was unable to provide a medical opinion at that time. The June 2011 VA examiner provided an addendum opinion in March 2012, after having an opportunity to review the entire claims file, to include a November 2002 operative report. The VA examiner cited pertinent findings and treatment leading up to the time of the November 2002 operation, to include mild uterine fibroids shown on a pelvic ultrasound in February 1997, pelvic adhesions, endometriosis, and uterine fibroids shown on a September 2000 laparoscopy, and severe adhesions and a seven millimeter pedunculated fibroid with an otherwise normal uterus, with no cervical or ovarian abnormalities and no endometriosis identified at the time of the November 2002 operation. Based on these findings, the VA examiner opined that it was less likely than not that two cervical conizations in service contributed to the Veteran's having a hysterectomy. The VA examiner reasoned that the Veteran had heavy, painful menses predating service which became progressively worse, and had uterine fibroids identified on ultrasound during service. The Board finds that the March 2012 opinion is probative as it was provided by the VA examiner who conducted the June 2011 VA gynecological examination and was based on a full review of the evidence of record, to include consideration of the Veteran's lay statements provided during the course of the June 2011 examination, and a review of in-service and post-service treatment records cited in the examination and addendum. The Board finds that the examiner provided adequate reasons for the opinion rendered based on the evidence of record and her own expertise. Therefore, the Board finds that the March 2012 opinion provides competent, credible, and probative evidence showing that the November 2002 post-service hysterectomy is not related to cervical conizations in service. The March 2012 VA opinion did not address whether the Veteran's hysterectomy was otherwise related to CIN III or pelvic inflammatory disease diagnosed in service, or whether findings in service otherwise lead to pelvic adhesions shown at the time of the November 2002 hysterectomy. The Board, therefore, sought a VHA medical expert regarding the nature and etiology of the Veteran's post-service hysterectomy in light of the presence of presence of pelvic adhesions found during the operation, which caused symptoms leading to the need for the procedure. An opinion was provided in January 2013, with an addendum opinion in May 2013. The VHA examiner concurred with the March 2012 VA examiner's opinion, stating that it was less likely than not that two cervical conizations contributed to the Veteran having a hysterectomy. She reasoned that the Veteran had heavy, painful mensis predating service which became progressively worse, and that she had anenomyosis on final pathology which would more likely explain the Veteran's pain and bleeding. The VHA examiner further opined, in May 2013, that is was less likely than not that the two cone biopsies, dilation and cutterage, and pelvic inflammatory disease in service led to pelvic adhesions or any other conditions that caused symptoms necessitating a hysterectomy in November 2002. The VHA examiner reasoned that the Veteran reported pelvic pain predating service, that there were negative laparoscopy findings with a final diagnosis of pelvic pain and tenderness in service in 1990, that the chronic condition of endometriosis was diagnosed with laparoscopy in 2000, and, therefore, pelvic adhesions were probably related to the continued progression of chronic endometriosis, and were unrelated to any events that occurred during military service. The Board finds that VHA opinions were rendered based the correct facts as shown by the record, and that the VHA examiner provided sufficient reasoning for the opinion rendered based both on her own expertise and medical knowledge, and on specific findings in the claims file for the Veteran. The VHA opinions are based on facts consistent with findings in service, which include a 1990 laparoscopy which was negative, and is further supported by a March 2012 VA opinion. For these reasons, the Board finds that the VHA opinions are probative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Based on the January 2013 and May 2013 VHA opinions, the Board finds that the Veteran had a hysterectomy in November 2002 due to endometriosis and pelvic adhesions which were diagnosed many years post-service in 2000, and the November 2002 hysterectomy with claimed residual scars is not etiologically related to any findings or treatment in service, to include CIN III, two cone biopsies, dilation and cutterage, and pelvic inflammatory disease. The Board finds that the Veteran has not presented competent, credible and probative evidence showing that the November 2002 hysterectomy is related to any diagnoses or treatment in service. The Veteran is competent to describe diagnoses rendered in service and to describe her diagnoses and treatment in service and the Board finds that she is credible in those reports. The Veteran has also credibly reported a history of pelvic pain predating service, and these reports are consistent with symptoms of pelvic pain and spotting shown in treatment records dated in 1989, prior to the Veteran's second period of service. In this case, the Veteran's reported symptoms, diagnoses, and treatment were considered by VA and VHA examiners in rendering the March 2012, January 2013 and March 2013 medical opinions. Insomuch as the Veteran's has attempted to establish a nexus between a post-service hysterectomy and diagnoses and treatment in service through her own lay assertions, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the Board finds that the specific issue in this case, the pathology leading up to a post-service hysterectomy, 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) (lay persons not competent to diagnose cancer)." The Board finds that the Veteran is competent and credible in her DRO hearing testimony, reporting that "scarring" or adhesions were identified by her obstetrician in conjunction with her hysterectomy. The Board finds, however, that the Veteran is not competent to relate such scarring or adhesions to in-service operative procedures. In light of the competent, credible, and probative evidence of record on the issue of causation provided by VA and VHA opinions, rendered by gynecological specialists, the Board finds that the Veteran's own lay assertions as to causation are of little probative value. For these reasons, the Board finds that the weight of the evidence does not establish a nexus between a post-service hysterectomy and service. A hysterectomy was performed post-service in November 2002, and the weight of the evidence does not establish a nexus between the Veteran's post-service hysterectomy and symptoms, diagnoses, or treatment in service. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a hysterectomy with residual scars, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 . (CONTINUED ON NEXT PAGE) ORDER Service connection for a hysterectomy with residual scars is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs