Citation Nr: 1328374 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 10-01 987 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a gynecological disorder. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran had active service from July 3, 1980 to September 29, 1980, with additional Reserve service between June 1980 to June 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In support of her claim, the Veteran testified at a video conference hearing held in February 2013 before the undersigned Veterans Law Judge of the Board (VLJ). Relevant to these proceedings, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. A review of the hearing transcript on file reflects that these matters were raised and discussed. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor her representative have asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), or otherwise identified any prejudice in the conduct of the hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. The Board notes that, in addition to the paper claims file, there is a paperless claims file associated with the Veteran's claim. A September 2013 review of the documents in such file reveals no additional documents pertinent to the Veteran's case which have not already been considered in conjunction with the appeal. FINDINGS OF FACT 1. A gynecological condition was not present during the Veteran's active duty service in 1980 or during any subsequent period of active duty training. 2. There has not been presented any competent clinical evidence of a gynecological disorder since the Veteran filed her original service connection claim in March 2006. CONCLUSION OF LAW The criteria for service connection for a gynecological condition are not met. 38 U.S.C.A. §§ 101, 106, 1101, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). The RO informed the Veteran of VA's duty to assist her in the development of evidence pertinent to her service connection claim in letters dated in July 2006 and November 2008, wherein the Veteran was advised of the provisions relating to the VCAA. The Veteran was advised that VA would assist her with obtaining relevant records from any Federal agency, which may include medical records from the military, from VA hospitals (including private facilities where VA authorized treatment), or from the Social Security Administration. With respect to private treatment records, the letter informed the Veteran that VA would make reasonable efforts to obtain private or non-Federal medical records, to include records from State or local governments, private doctors and hospitals, or current or former employers. Furthermore, the VA included copies of VA Form 21-4142, Authorization and Consent to Release Information, which the Veteran could complete to release private medical records to the VA. The Board further observes that on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA 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. The Veteran was provided with notice of the type of evidence necessary to establish a disability rating or effective date as was discussed in the Dingess case in a November 2008 letter, prior to the adjudication of the claim in July 2009. Thereafter, the RO also adjudicated the claim in a Statement of the Case (SOC) issued in December 2009 and in a Supplemental SOCs issued in May 2012. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of fully compliant notification followed by readjudication of the claim, such as an Statement of the Case or Supplemental Statement of the Case, is sufficient to cure a timing defect). In this event, any defect in the timing of the notice is moot, harmless error and non-prejudicial, because as explained herein, the service connection claim on appeal is being denied and hence there is no disability rating or effective date to be assigned. The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the issues on appeal has been obtained. The Veteran's service treatment records, reserve records and post-service treatment records were obtained and the file includes arguments, contentions and statements of the Veteran and her representative. In addition, the Veteran provided testimony at a Board video conference hearing held in February 2013. VA's duty to assist includes obtaining an examination and medical opinion when necessary to make an adequate determination. See Duenas v. Principi, 18 Vet. App. 512 2004). The Veteran has not had a VA examination specifically relating to her current claim seeking service connection for a gynecological disorder. A VA examination must be provided when (1) there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; and (2) evidence establishing that an event, injury or disease occurred in service; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006); 38 C.F.R. § 3.159(c)(4); see also 38 U.S.C.A. § 5103A(d)(2); Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010) (noting that the three subsections of the statutory provision contain different evidentiary standards-- "competent evidence," "evidence . . . indicat[ing]"," and "medical evidence"). The Board concludes that an examination is not needed in this case because, there is no indication that any gynecological condition was treated or diagnosed during the Veteran's period of active duty service or while on active duty for training, and there has been no competent evidence presented of any current gynecological condition. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (finding no prejudicial error in Board's statement of reasons or bases regarding why a medical opinion was not warranted because there was no reasonable possibility that such an opinion could substantiate the Veteran's claim because there was no evidence, other than his own lay assertion, that "'reflect[ed] that he suffered an event, injury[,] or disease in service' that may be associated with [his] symptoms"); see also Waters, at 1278 (noting that a veteran's conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination since all veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case). Accordingly, the Board finds that VA has complied, to the extent required, with the duty-to-assist requirements found at 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e). Background In March 2006, the Veteran filed a service connection claim for a condition of the cervix, claimed to have occurred in February 1983. The file contains information reflecting that the Veteran had creditable active duty service from July 3 to September 29, 1980 only. Thereafter, she had no further periods of active duty. Evidence on record clearly indicates that the Veteran was on paid inactive duty on December 4 and 5, 1982; January 8 and 9, 1983; February 5, 1983; and March 5 and 6, 1983. The Veteran's active duty medical records dated in 1980 reveal no complaints, treatment, or diagnosis of a cervical or gynecological condition. The May 1980 reserve enlistment examination report reflected that pelvic and vaginal examination was normal and that a Pap test was negative. The Veteran's reserve medical records include a January 1981 entry indicating that a Pap test of December 1980 was negative. A periodic examination report of December 1981 reflects that pelvic and vaginal examination was normal and that a Pap test was negative. A late January 1983 entry indicates that an abnormal pap smear was shown, as evidenced by cell changes with mild dysplasia. In a March 2007 statement, the Veteran indicated that she had been treated at the DeKalb Medical Center since 1984. In April 2007, that source indicated that it was unable to locate any records for the Veteran. Private medical records dated from 1987 to 2004, include January 1987 and August 1988 pathology reports which revealed evidence of mild atypical squamous cells in the cervical area. A cervical cell collection of February 2004 revealed evidence of inflammation with associated benign cellular changes A private medical report reflects that a Pap test was conducted in late January 2009, which was negative for intraepithelial lesion and malignancy. A medical record accompanying those test results reflects that a Pap test of 2006 was also normal. The file includes a February 2009 statement of Command Chief J.T.G (Ret.) indicating that he had supervised the Veteran and believed that in 1983, she told him she was having a medical problem, which he found later was related to a pregnancy. The Veteran provided testimony at a Board video conference hearing held in February 2013. At that time, she claimed to have active duty service and active duty for training between 1980 and 1986. She also claimed that she had a gynecological condition described as HPV (Human Papillomavirus), and cervical cancer, resulting from an abnormal Pap test in 1983, and that she had been told as much by a doctor (she could not identify the doctor's name) in 1983 or 1984. She also indicated that the abnormal Pap test resulted from sexual trauma (reportedly sustained during reserve service and prior to the abnormal Pap test). Analysis The Veteran claims that entitlement to service connection for a gynecological condition, arising from an abnormal Pap test of January 1983, is warranted. She further contends that she was serving on active duty for training when that Pap test was conducted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology apply to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, in order to prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In this case the critical inquiries involve whether there was an indication of a gynecological condition while the Veteran was on active duty or active duty for training; and whether there is any indication of a currently manifested gynecological condition. Addressing the first question, the Board concludes that no gynecological condition was present while the Veteran was on active duty or active duty for training. In this regard, the STRs do not reflect nor does the Veteran maintain that any gynecological condition was present during her period of active duty service extending from July 3, 1980 to September 29, 1980. Instead she maintains that a Pap test of January 1983 was abnormal as shown by findings made in February 1983, and maintains that she was on active duty for training during that time period. The Board notes that the matter of whether or not the Veteran was on active duty for training during this time period is of critical importance in this case. The term "active military, naval, or air service" is defined to include active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24); see also 38 C.F.R. § 3.6(a). ACDUTRA includes, inter alia, full time duty in the Armed Forces performed by Reserves for training purposes. 38 U.S.C.A. § 101(22); see also 38 C.F.R. § 3.6(c)(1). For periods of ACDUTRA, service connection may be granted for disability resulting from injuries or diseases incurred or aggravated during such periods. For periods of INACDUTRA, service connection may be granted for disability resulting only from injuries incurred or aggravated during such periods, but not for disability resulting from diseases. 38 U.S.C.A. § 101(22), (24); see McManaway v. West, 13 Vet. App. 60, 67 (1999) (quoting Brooks v. Brown, 5 Vet. App. 484, 485 (1993) (discussing 38 U.S.C. §§ 101(24), 1131) (stating that the law "permits service connection for persons on inactive duty (training) only for injuries, not diseases, incurred or aggravated in line of duty"). Moreover, the advantage of certain evidentiary presumptions, provided by law, that assist veterans in establishing service connection for a disability do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on active duty for training and had not established any service-connected disabilities from that period); McManaway, 13 Vet. App. at 67 (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of active duty for training, a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim" (emphasis in McManaway)); see also Biggins v. Derwinski, 1 Vet. App. 474, 479 (1991) (Steinberg, J., concurring). Any individual who, when authorized or required by competent authority, assumes an obligation to perform ACDUTRA or INACDUTRA, and who is disabled from an injury incurred while proceeding directly to or returning directly from such ACDUTRA or INACDUTRA, shall be deemed to have been on ACDUTRA or INACDUTRA, as the case may be. VA will determine whether such individual was so authorized or required to perform such duty and whether the individual was disabled from injury so incurred. In making such determination, there shall be taken into consideration the hour on which the individual began to proceed or return; the hour on which the individual was scheduled to arrive for or ceased to perform such duty; the method of travel employed; the itinerary; the method in which the travel was performed; and the immediate cause of disability. Whenever any claim is filed alleging that the claimant is entitled to benefits by reason of this subsection, the burden of proof shall be on the claimant. 38 U.S.C.A. § 106(d); 38 C.F.R. § 3.6(e). In accordance with 38 U.S.C.A. § 106, VA has the authority to determine whether a claimant was in active service, including ACDUTRA or INACDUTRA, at the time a claimed injury occurred. VA regulations governing requirements for establishing service for VA benefits purposes require military service department verification of the appellant's service. See Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); 38 C.F.R. § 3.203. "[O]nly official service department records can establish if and when an individual was serving on active duty, [ACDUTRA], or [INACDUTRA]." Cahall v. Brown, 7 Vet. App. 232, 237 (1994). In this case, the Veteran had no ACDUTRA status between December 1982 and March 1983. During that time period, official Army National Guard documents indicate that the Veteran performed paid inactive duty on December 4 and 5, 1982; January 8 and 9, 1983; February 5, 1983; and March 5 and 6, 1983. Moreover, she did not sustain any injury during that time at issue; i.e. January and February 1983. The only gynecological condition noted during that time was an abnormal pap test conducted in late January 1983, as evidenced by cell changes with mild dysplasia. Dysplasia" is defined as abnormal tissue development. "Cervical dysplasia" is defined as dysplasia in the uterine cervix, epithelial atypia involving part or all of the thickness of cervical squamous epithelium, occurring most often in young women. The condition appears to regress frequently but may progress over a long period to carcinoma. Severe dysplasia may be microscopically indistinguishable from carcinoma in situ. Stedman's Medical Dictionary, 27th ed., page 554, 555. Hence to the extent shown, an abnormal Pap test manifested by dyplasia, is neither an injury nor disease; it is simply an abnormal test result. In summary, there was no gynecological condition which manifested while the Veteran was on active duty or ACDUTRA and hence the claim may be denied on this basis alone. As an additional basis for the denial of the claim, there is no clinical indication of any currently manifested gynecological condition. The Board notes that the requirement that a claimant have a current disability before service connection may be awarded for that disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication. McClain v. Nicholson, 21 Vet. App. 319 (2007). The most recent evidence in this case reflects that the Veteran had normal Pap tests in 2006 and 2009 and do not reveal the presence of any current gynecological condition. In her February 2013 testimony, the Veteran indicated that her current clinical gynecological problems included HPV and cervical cancer. However, no such conditions have been clinically diagnosed at any time since the Veteran filed her service connection claim in 2006. Moreover, the Veteran herself lacks the competency to diagnose such disorders herself, both of which require clinical evidence and expertise to substantiate. In this regard, the Federal Circuit has stated as follows: "[l]ay 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). None of those conditions apply here, and as such the Veteran simply lacks the competency herself to diagnose HPV and/or cervical cancer. With respect to the Veteran's 2013 testimony to the effect that in 1983 or 1984 an (unspecified) doctor told her that she had HPV and/or cervical cancer, the Court has held that hearsay medical evidence, as transmitted by a lay person, is not sufficient to support a claim of service connection. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (The connection between what a physician said and the layman's account of what the physician purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute competent medical evidence in support of a claim for service connection). See also Kirwin v. v. Brown, 8 Vet. App. 148, 153 (1995). Hence, her lay assertions in this regard have no probative value. See also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease or rheumatic fever). Consistent with the analysis herein, the preponderance of the evidence is against the claim; there is no doubt to be resolved; and, service connection for a gynecological condition is not warranted. ORDER Service connection for a gynecological condition is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs