Citation Nr: 1327139 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 09-08 198 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for dysfunctional uterine bleeding, status-post hysterectomy. 2. Entitlement to an initial rating greater than 20 percent for a thoracolumbar spine disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from November 1980 to November 1983. This matter comes before the Board of Veterans' Appeals (Board) from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Idaho. At the October 2012 hearing, the Veteran contended that she had submitted a timely notice of disagreement with respect to the rating assigned for the service-connected psychiatric disorder. The record indicates that a rating greater than 30 percent was denied for a psychiatric disorder in a September 2011 rating decision. The record does not indicate that the Veteran filed a notice of disagreement, or a statement that could be so interpreted, within one year of the issuance of the September 2011 rating decision, however. The Board acknowledges that the Veteran submitted a "supplemental claim for compensation" in February 2012. The claim does not suggest a disagreement with the denial of the increased rating for the psychiatric disorder. The Veteran also submitted a notice of disagreement with the September 2011 rating decision in August 2012. However, the Veteran specified that she was only disagreeing with the September 2011 rating decision insofar as it denied service connection for hysterectomy and bilateral oopherectomy. The August 2012 letter from the Veteran does not suggest a disagreement with the denial of an increased rating for the psychiatric disorder. Thus, the Board finds the Veteran's contention during the October 2012 hearing is a new claim for increased rating for a psychiatric disorder; it is referred to the agency of original jurisdiction for appropriate action. The issue of entitlement to an increased initial rating is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The dysfunctional uterine bleeding preexisted service and was not aggravated by service. CONCLUSION OF LAW Service connection for dysfunctional uterine bleeding is denied. 38 U.S.C.A. §§ 1111, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304(b) (2012); VAOPGCPREC 3-2003. REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1131. Service connection may also 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In rendering a decision on appeal, the Board must 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The June 1980 enlistment examination record reveals the Veteran's history of treatment for a female disorder and change in menstrual pattern. The record indicates that the Veteran had menorrhagea at age 17. The Veteran indicated that work-up was negative and that she was "ok" since that time. Clinical examination of the vagina was normal; the examiner noted that the Veteran was using an intrauterine device. December 1980 and January 1981 treatment records reflect histories of cramping prior to menses. The records note that the Veteran had an intrauterine device. The cramping was believed to be due to either the intrauterine device or possible gonorrhea. The Veteran was assessed with probable gonorrhea. An April 1981 treatment record reveals the Veteran's history that her menses was overdue. She was assessed with rule out pregnancy. A May 1981 examination record reflects the Veteran's history of treatment for a female disorder and a change in menstrual pattern. The Veteran explained that she had a laparoscopy in 1977 and two dilation and curettage procedures in 1977. The record does not note any current gynecological issues, and the record indicates that a vaginal examination was normal. A January 1982 treatment record reflects the Veteran's history of "female problem." The record clarifies that the Veteran had a sebaceous cyst on the right subpubic area. A December 1982 treatment record indicates that a Pap smear was being repeated because of prior abnormality. The record notes the Veteran's concerns about infertility because she had been trying to get pregnant for six months. The record reveals that the Veteran was advised to try for one year prior to any further work-up. A June 1983 treatment record reflects the Veteran's history of excessive bleeding for five days. The Veteran explained that it was possible that she had been pregnant. The Veteran indicated that her last menstrual period lasted for nine days. The Veteran also reported cramping and chest pain for the previous 13 days. Gynecological examination resulted in diagnoses of rule out pregnancy and anovultory cycle. A subsequent June 1983 treatment record reflects the Veteran's history of vaginal bleeding and clotting. The Veteran explained that she had undergone dilation and curettages prior to service because of increased bleeding. The record notes that the previous Pap smear was normal and that the Veteran reported a positive pregnancy test. The Veteran was diagnosed with dysfunctional bleeding due to anovulation or threatened abortion. A July 1983 treatment record indicates that the Veteran had an elective termination of pregnancy at a private medical facility. A January 1985 VA examination record reflects the Veteran's history of laparoscopic exam and two dilations and curettages in 1977 for persistent bleeding, which was "finally diagnosed" as being secondary to birth control pills. The Veteran denied any other past gynecological problem. After examination, the Veteran was diagnosed with apparently normal early intra-uterine pregnancy with Monilial vulvovaganitis. VA examinations dated in November 1987 and July 1988 do not reflect any histories indicative of menorrhagia. A December 2002 private treatment record reflects a history of a previous total abdominal hysterectomy. A September 2007 VA treatment record indicates that the Veteran was post-menopausal, status-post hormone replacement therapy. An October 2007 VA treatment record indicates that the Veteran was status-post total abdominal hysterectomy/bilateral salpingo-oophorectomy. The record indicates that the procedures were done for "noncancerous indications" in 1992. An August 2011 VA examination record reflects the Veteran's history of abnormal Pap smears in 1981. She reported that "over the next few years, she had painful coitus and excessive bleeding, defined as long heavy periods for 7-10 days." She indicated that she had three children, in 1985, 1988, and 1989. She also reported becoming pregnant in approximately 1983 as a result of rape and terminating that pregnancy. She indicated that the painful intercourse and heavier bleeding began after the rape. She denied bleeding during the pregnancies but indicated her belief that she continued to have heavy menses between pregnancies. She denied birth control since 1979. She also denied painful coitus during her first marriage or with another partner prior to the rape. She reported that the hysterectomy was done in 1992 due to excessive bleeding. She denied any residual problems after the hysterectomy. The examiner diagnosed status-post hysterectomy and eventual bilateral oopherectomy with no residual. The examiner indicated review of the claims file and noted an inability to find pathology reports from the hysterectomy. The examiner determined that it was less likely that the hysterectomy for persistent menorrhagia, as described by the Veteran, was due to any illness or disease during service. The examiner found that the dysfunctional uterine bleeding from unclear causes (because the diagnostic and pathology records were not available) existed prior to service. Furthermore, the examiner found that the dysfunctional uterine bleeding was not aggravated by service. The examiner explained that there was no evidence of disease which would have caused aggravation of this condition beyond normal progression within active duty. The examiner added that the Veteran was able to conceive several times, making endometriosis while active duty and in the early years after discharge, less likely. The Veteran testified at a hearing before the Board in October 2012. At that time, she testified that she began having heavy periods in April 1981. She explained that she first attributed the heavy bleeding to stress. She added that prior to service, she had two dilations and curettages and a laparoscopy at age 19 to determine the etiology of heavy bleeding and that the bleeding was attributed to oral contraception. She testified that she was seen many times for heavy bleeding and abdominal pain during service. She testified that she was ultimately advised to have a hysterectomy in 1993 because of menorrhagia. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. This presumption of sound condition attaches only where there has been an induction examination in which a disease or injury was not noted but which manifested in service. Gilbert v. Shinseki, 26 Vet. App. 48 (2012). The term "noted" in section 1111 of the statute denotes only such conditions as are recorded in examination reports. History provided by the veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a pre-existing condition. 38 C.F.R. §§ 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). Although the entrance examination record reflects the Veteran's past history of menorrhagia, the record reflects normal clinical findings for the gynecological system and no diagnosis of menorrhagia. Accordingly, because only a history of menorrhagia provided by the Veteran was shown on the entrance examination report, the Board finds menorrhagia was not "noted" at entry to service. The remaining question with regard to whether the presumption of soundness applies in this case is whether dysfunctional bleeding manifested in service. Gilbert, 26 Vet. App. at 53. Treatment records dated in June 1983 reflect the Veteran's histories of excessive bleeding in May and June 1983 and findings of dysfunctional bleeding. Although it is ambiguous as to whether the reported excessive bleeding was due to pregnancy, the Board finds the evidence warrants the application of the presumption of soundness. To rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In determining whether a disorder existed prior to service, it is important to look at accepted medical principles including clinical factors pertinent to the basic character, origin, and development of the disorder. 38 C.F.R. § 3.304(b)(1). History given by the veteran, which conformed to accepted medical principles, in conjunction with basis clinical data, is probative evidence of the incurrence, symptoms, and course of the disorder. 38 C.F.R. § 3.304(b)(2) . The evidence of record includes statements by the Veteran dated during and after service that she had menorrhagia prior to service. The evidence also includes a competent determination from a VA examiner that the in-service menorrhagia preexisted service. The Board acknowledges that the Veteran has reported that her pre-service menorrhagia was due to the use of oral contraceptives and that any subsequent menorrhagia was unrelated because she had discontinued the use of oral contraceptives. In other words, she contends that the reported menorrhagia during service was unrelated to the menorrhagia prior to service. The Veteran first provided the history of menorrhagia due to oral contraceptives in 1985, and it is unclear when the etiology was determined and if it was determined by a medical professional or the Veteran: previous statements from the Veteran revealed no cause for the menorrhagia; rather they indicated that workup for the cause of the menorrhagia was "negative." In the absence of a history that the cause of the pre-service menorrhagia was determined by a medical professional, the absence of corroborative medical findings (the VA examiner instead found the dysfunctional bleeding was due to unclear causes), and the absence of evidence that the Veteran is competent to distinguish the etiologies of the menorrhagia before and during service, the Board finds the Veteran's statements are not probative evidence that the menorrhagia during service was unrelated to the menorrhagia prior to service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). As such, the Board finds the record includes clear and unmistakable evidence that menorrhagia preexisted service. See 38 C.F.R. § 3.304(b)(1) and (2). To rebut the presumption of soundness, there must also be clear and unmistakable evidence that there was no increase in severity during service. The occurrence of symptoms alone does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). The service treatment and examination records do not reflect any treatment, complaints, or abnormal findings suggestive of an aggravation of the menorrhagia during service. The service medical records only reflect histories of two episodes of excessive bleeding dated in May/June 1983, at a time when the Veteran suspected pregnancy, and subsequent service treatment records and the 1985, 1987, and 1988 examination records do not reveal any histories of current, let alone worsened, menorrhagia or histories or findings possibly indicative of worsened menorrhagia, such as anemia. Moreover, the Board notes that the Veteran has not alleged that the menorrhagia worsened during service. Furthermore, a VA physician has provided a probative opinion (i.e. opinions based on review of the record and supported by rationale) that there was no aggravation during service, and the record contains no countervailing competent medical evidence as to aggravation. Thus, the Board finds the record includes clear and unmistakable evidence of no increase during service and the second prong of the presumption of soundness is rebutted. Additionally, even if the Board were to find the presumption of soundness were not rebutted - because the in-service menorrhagia was distinct from the pre-service menorrhagia - the Board finds service connection is not warranted because the competent evidence does not suggest a nexus between the dysfunctional bleeding in service and the post-service condition which resulted in the post-service hysterectomy. The record does not include any probative medical opinions indicating such a link. The Board acknowledges that the Veteran has reported dysfunctional bleeding during and since service until the hysterectomy. The service treatment records only reflect histories of dysfunctional bleeding in May and June 1983, however, though the record includes subsequent service treatment records, and the January 1985 VA examination record reveals that the Veteran denied a history of gynecological problem other than the persistent bleeding in 1977. Although the Veteran is competent to report the existence of symptoms, including excessive uterine bleeding, the Board finds the Veteran's histories of chronic dysfunctional uterine bleeding during and after service until the hysterectomy are not credible because the Veteran has provided conflicting histories as to the date of onset and cause of the in-service dysfunctional bleeding -- she has alternately reported that it began in 1981 possibly due to stress or 1983 as a result of a rape and subsequent pregnancy - and her histories of frequent treatment is not corroborated by the service medical records. Furthermore, the Veteran does not report a history of current, or even recent, menorrhagia after June 1983, though she received subsequent treatment during service and underwent VA examinations in January 1985, November 1987, and July 1988 wherein she reported other gynecological symptoms, as would be expected if it were a chronic problem. Thus, the Board finds the Veteran's current statements as to the existence of persistent menorrhagia dating from service until the hysterectomy are not credible, and thus not probative, evidence of a link between the hysterectomy and service. The Board acknowledges that the Veteran believes her dysfunctional uterine bleeding and ultimate hysterectomy is related to service. The Veteran has not provided a probative history of continuous symptoms or otherwise shown that she is competent to render such a determination, however: it is a matter of complexity that requires specialized knowledge which the Veteran has not been shown to possess. See Davidson, 581 F.3d at 1316. Thus, the Board concludes that the Veteran's statements do not constitute competent and probative evidence on which the Board can make a service connection determination. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, the preponderance of the evidence is against the Veteran's claims of entitlement to service connection. Accordingly, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 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. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board finds that the duty to notify was satisfied by a letter sent to the Veteran in July 2011. The letter addressed all of the notice elements and was sent prior to the initial unfavorable decision by the agency of original jurisdiction in September 2011. The duty to assist was also met. The service treatment records are in the claims file. All pertinent and reported VA and private treatment records have been obtained and associated with the file. A VA examination with opinion was obtained in August 2011. 38 C.F.R. § 3.159(c) (4). 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 acknowledges that the Veteran believes the examination was inadequate because the examiner was dismissive. The Board finds that the VA examination with opinion is adequate, however. The opinion is predicated on a full reading of the private and VA medical records in the Veteran's claims file and considers all of the pertinent evidence of record and the statements of the appellant, and the examiner provided a complete rationale for the opinion stated, 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 or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). ORDER Service connection for dysfunctional uterine bleeding, status-post hysterectomy, is denied. REMAND With respect to the claim of increased rating for a thoracolumbar spine disability, the Veteran has requested a hearing before the Board at her local regional office, i.e. a Travel Board hearing. The Board acknowledges that a Board hearing was held in October 2012. Testimony was not taken on the claim of increased rating, however: the record indicates that the Veteran changed representatives after perfecting the appeal of the rating assigned for the thoracolumbar spine disability, and they were not prepared to present testimony on the issue of an increased rating at the time of the Board hearing. Since Travel Board hearings are scheduled by the RO, this case is REMANDED to the RO for the following action: The RO should schedule the Veteran for the desired Travel Board hearing in accordance with the docket number of her appeal. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs