Citation Nr: 1328634	
Decision Date: 09/09/13    Archive Date: 09/17/13

DOCKET NO.  10-04 328A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for a rash.

2.  Entitlement to service connection for irritable bowel syndrome (IBS).

3.  Entitlement to service connection for Crohn's disease.

4.  Entitlement to service connection for ulcerative ileitis.

5.  Entitlement to service connection for residuals of a laparotomy, including as secondary to the Crohn's disease.

6.  Entitlement to service connection for cysts and uterine fibroids.

7.  Entitlement to an initial compensable rating for migraine headaches.




REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran and her husband


ATTORNEY FOR THE BOARD

D. Bredehorst


INTRODUCTION

The Veteran served on active duty from August 1983 to June 1989.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In adjudicating the claims, the RO considered the Veteran's purported entitlement to service connection for residuals of a laparotomy, cysts, and uterine fibroids as a single issue, so as just one claim.  Since, however, there is evidence of record suggesting she had a laparotomy in conjunction with her other claimed gastrointestinal disorders, as opposed to gynecological disorders, the Board has recharacterized her claims to better reflect her alleged entitlement.

In January 2013, in support of her claims, she testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board.  A transcript of the hearing is in the electronic ("Virtual VA") file.  Following the hearing, the Veteran withdrew her claim of entitlement to service connection for a rash, so the Board is dismissing this claim.  38 C.F.R. § 20.204 (2012).

Additional evidence also was received in January 2013, but with a waiver allowing the Board to initially consider it rather than the RO in the first instance as the Agency of Original Jurisdiction (AOJ).  38 C.F.R. § 20.1304.  Nevertheless, because additional development is needed concerning the claims of entitlement to service connection for residuals of the laparotomy, IBS, Crohn's disease, and ulcerative ileitis, and for a higher initial rating for the migraines, the Board is remanding these claims to the RO via the Appeals Management Center (AMC) in Washington, DC.  Whereas the Board, as mentioned, is going ahead and dismissing or deciding the remaining claims.


FINDINGS OF FACT

1.  In a rather recent January 2013 written statement, the Veteran withdrew the appeal of her claim of entitlement to service connection for a rash.

2.  She has not presented competent and credible, meaning probative, evidence of having cysts and fibroids in service, or continuing symptoms of these disorders since her service, or of current disability.

3.  Her cysts were manifested many years after her service and there is no competent and credible, meaning probative, evidence that she currently has cysts that are in any way related to her service.

4.  There equally is no competent and credible, meaning probative, evidence that she has uterine fibroids that are in any way related to her service.



CONCLUSIONS OF LAW

1.  The criteria are met for withdrawal of the Substantive Appeal concerning her claim of entitlement to service connection for a rash.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.204 (2012).

2.  It is not shown she has cysts and uterine fibroids because of disease or injury incurred in or aggravated by her active military service or that these alleged conditions alternatively may be presumed to have been incurred during her service.  38 U.S.C.A. §§ 1101, 1112, 1113, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants with their claims for VA benefits upon receipt of a complete or substantially complete application.  The VCAA was codified by statutes at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012), and the implementing VA regulations were codified, as amended, at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

To this end, VA must:  (1) inform the claimant of the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant of the information and evidence that VA will obtain; and (3) inform the claimant of the information and evidence he or she is expected to provide.  See also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).


When the claim is for service connection, the VCAA notice should address all five elements of the claim:  (1) Veteran status, (2) existence of a disability, (3) relationship between the disability and service, but also the "downstream" (4) disability rating, and (5) effective date in the eventuality service connection is granted.  See Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom; Hartman v. Nicholson, 483 F.3d 1311 (2007).

The United States Court of Appeals for Veterans Claims (Court/CAVC) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004), that, to the extent possible, the VCAA notice should be provided to the claimant before an initial unfavorable decision on the claim.  Pelegrini at 119-20.  If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis.  And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

Because, as discussed below, the Veteran has withdrawn her claim for service connection for a rash, no discussion of whether there has been compliance with the VCAA is required as concerning this claim because it is being summarily dismissed.


As for her remaining claims that instead are being decided, rather than dismissed, an August 2008 letter provided her the required notice of the evidence and information necessary to substantiate these claims, also of the information required of her to enable VA to obtain evidence supporting these claims, and the assistance that VA would provide in obtaining information and evidence supporting these claims.  That notice was provided prior to the July 2009 rating decision at issue, so in the preferred sequence.

VA also has made reasonable efforts to assist her in obtaining evidence necessary to substantiate her claims.  Her service treatment records (STRs) were obtained and associated with her claims file for consideration.  VA also obtained all other pertinent or identified records that could be obtained.  However, arrangements were not made to schedule her for a VA examination to help determine the etiology of her claimed disorders because no opinion was necessary to decide the claims.  See 38 U.S.C.A. § 5103A(d)(2) (setting forth VA's duties to the claimant as concerning the scheduling of a VA examination).  See also 38 C.F.R. § 3.159(c)(4) and McLendon v. Nicholson, 20 Vet. App. 79 (2006).

In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit Court held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service.  Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277.  On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet this standard as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all Veterans claiming entitlement to service connection, so merely as a matter of course rather than as meeting the specific and craftily tailored requirements for when an examination and opinion are required.  Waters, 601 F.3d at 1278-1279.  See also Duenas v. Principi, 18 Vet. App. 512, 519 (2004).


Given this enunciated standard, the Board finds that a remand for a VA examination is not required in this instance because the Veteran's STRs are entirely unremarkable for these claimed disorders and/or the post-service records are equally unremarkable for these claimed disorders for many years after her separation from military service, if ever.  The lay statements and testimony from her and her husband regarding the onset of these conditions during her service and ongoing treatment during the many years since are essentially attempting to establish the required nexus to her service based on continuity of symptomatolgy.  However, their lay testimony and statements are not competent and credible because, as will be explained in more detail below, there is no evidence tending to corroborate this allegation of ongoing treatment, as least as concerning these specific conditions, or of any relevant diagnoses since the filing of these claims.  Furthermore, 38 C.F.R. § 3.303(b), which is the VA regulation allowing for a showing of continuity of symptomatology since service to alternatively establish the required linkage between the claimed disability and service, does not apply to these claims since cysts and uterine fibroids are not amongst the conditions identified in § 3.309(a) as chronic per se and, therefore, not subject to this proof and pleading exception.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Also see Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (holding that VA was not required to provide a medical examination when there is no credible evidence of an event, injury, or disease in service when the Board does not find the Veteran's statements concerning same credible).

The Veteran did however have a videoconference hearing before the undersigned Veterans Law Judge (VLJ) of the Board in January 2013, and there was compliance with the requirements of 38 C.F.R. 3.103(c)(2), which sets forth the duties of the presiding hearing officer.  See also Bryant v. Shinseki, 23 Vet. App. 488 (2010).  These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may be advantageous to the claimant's position.  Bryant, 23 Vet. App. at 488.


Here, the presiding VLJ noted the claimed disorders and made inquiries as to the onset of symptoms in service and post-service symptoms, evaluation and treatment for them.  As such, the Board finds that, consistent with Bryant, the presiding VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) such that the Board may proceed to adjudicating these claims based on the current record.

Thus, as there is no indication or allegation that any other relevant evidence remains outstanding, at least as concerning these claims, the Board finds that the duty to assist has been met.  38 U.S.C.A. § 5103A (West 2002).  The Board, therefore, is proceeding with the adjudication of these claims.

Claim Withdrawn

Following the January 2013 videoconference hearing before the Board, the Veteran submitted a written statement that same month withdrawing the appeal of her claim for service connection for a rash (erythema).  During her hearing, she had indicated the rash was first diagnosed in 1998 or thereabouts, but that it since had completely resolved with treatment using a topical cream.  And when specifically asked whether she still has any associated disability, she responded "no."

Her hearing testimony and subsequent statement satisfy the requirements for withdrawal of an appeal of a claim in accordance with 38 C.F.R. § 20.204(b), in that it was in writing, contained her name and claim number, stated the appeal of this claim was being withdrawn, and was received by the Board prior to issuance of a decision regarding this claim being withdrawn.

When a pending appeal is withdrawn, there is no longer an allegation of error of fact or law with respect to the determination that had been previously appealed.  Consequently, dismissal of the pending appeal is the appropriate disposition.  See 38 U.S.C.A. § 7105(d).

Accordingly, no further action by the Board concerning this claim is necessary and the appeal of this claim is dismissed.  Id.

Service Connection

Legal Criteria and Analysis

Service connection is granted for disability resulting from a disease contracted or an injury sustained in the line of duty during active military service or for aggravation during service of a pre-existing condition beyond its natural progression.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012).

Establishing entitlement to service connection on a direct-incurrence basis requires competent and credible evidence showing:  (1) the Veteran has the claimed disability or, at the very least, showing she has at some point since the filing of her claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and, (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995).

Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).

But if chronicity of disease or injury in service is not shown, or if it is legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim.  38 C.F.R. § 3.303(b).  Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service to, in turn, link current disability to service.  See also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  That is, these second and third elements can be satisfied under 38 C.F.R. § 3.303(b) by competent and credible evidence demonstrating: (1) the condition was observed ("noted") during service; (2) symptoms of that condition continued after service; and, (3) the current condition is related to those continuing symptoms.

The United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, recently held that continuity of symptomatology only can be used to establish this required linkage between the current condition and service if the condition is one of those explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

So service connection may be established either by showing direct service incurrence or aggravation, or by using applicable presumptions, if available, or under 38 C.F.R. § 3.310(a) and (b) by showing the condition claimed is secondarily related to service, meaning either caused or permanently worsened by a service-connected disability.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is "credible", or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must additionally determine whether it is also credible).  Only if the evidence is both competent and credible does it ultimately have probative value.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (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")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).


Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).

Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

In ascertaining the competency of lay evidence, the Courts generally have held that a layperson is incapable of opining on matters requiring medical knowledge.  In certain instances, however, lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).

On the other hand, laypersons equally have been found not competent in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).

Competent medical evidence, as opposed to lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").  As fact finder, when considering whether lay evidence is satisfactory, the Board may not only consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, but also the Veteran's demeanor when testifying at a hearing when he has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).


In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases 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).  To this end, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court (CAVC) similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See also 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

In deciding these claims, the Board has reviewed all of the evidence in the Veteran's claims file, both her physical claims file and electronic ("Virtual VA") 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 her or obtained on her behalf be discussed in exhaustive detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The most fundamental requirement for any claim for service connection is that the Veteran must have proof she has the condition claimed.  See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see, too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim).

Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in disability.  Brammer  v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998).  A current disability means a disability shown by competent and credible evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997).

Here, although the Veteran testified during her videoconference hearing before the Board that both her cysts and fibroids had started in service and had persisted since, there is no supporting evidence in the file affirming the existence of these alleged disabilities, and this is true since the filing of these claims.  It is also worth noting that her testimony contradicted the information she had provided in her April 2008 claim application, in which she had reported the onset of her fibroids as in September 1995 and the onset of her cysts as in February 2000.  She served in the military from August 1983 to June 1989, so in both instances that was long after her service had ended.

Her STRs are unremarkable for both cysts and uterine fibroids.  While these records show complaints of abdominal pain, cramping, and pelvic pain, these symptoms were attributed to gastroenteritis, metrorrhagia, a possible liver condition, and hemorrhoids.  See STRs dated in October 1984, September 1985, March 1987, and July 1988.

The only indication she may have had uterine fibroids was in September 1995, and that was related to the size of her uterus.  The record notes her uterus was 8 to 10 weeks in size and that it was "more like fibroids", but the assessment was enlarged uterus; there was no diagnosis of fibroids.  None of the other medical records in the claims file contains a diagnosis of fibroids and, in fact, subsequent gynecological records dated in January 2005, December 2005, and November 2007 show she had a normal size uterus and pelvic examination.  Furthermore, a December 2007 pelvic sonogram was negative for any abnormality other than cysts.  She was noted to have pain in January 2008, but it was thought to have been related to ovulation.

The Board resultantly finds her hearing testimony regarding the alleged onset of her fibroids in service and the continuing treatment since service is of no probative value.  While she is competent to report symptoms she experienced and may diagnose certain types of conditions, this assumes they are simple rather than complex, and her testimony is not credible because it is inconsistent with other evidence of record.  In her April 2008 claim she reported the initial onset of fibroids as in September 1995, which is more consistent with the record than her more recent hearing testimony.  As pointed out, her STRs do not contain a diagnosis of fibroids and the only mention of them, which was not even an actual diagnosis, was not until in the September 1995 treatment record, so not until approximately 6 years after her service had ended.  Therefore, her testimony is not found to be both competent and credible and consequently not probative in establishing the onset of the disorder during her service.

Although her assertion that abnormal pap smears in service and since service is evidence tending to support her claim, the pap smears are not shown to contain any evidence relative to diagnoses of fibroids or cysts.

Despite her testimony, there is no medical evidence tending to support her assertion of treatment for fibroids since service.  As noted, there is no record of a diagnosis, not to mention the absence of evidence showing continuing treatment since service.  Notably, the claims file contains treatment records dating back to 1989, therefore, had there been treatment or a diagnosis since service, it would be reflected in these records.

Regarding her cysts, the Veteran's testimony as to their onset is also contradicted by other evidence of record, therefore, this assertion also is found not to be probative.  Her April 2008 claim dates the onset of cysts back to 2000, which was approximately 11 years after the conclusion of her service.  Significantly, her STRs do not contain a diagnosis of cysts and the earliest post-service evidence of them is in a February 2000 radiological report, which is consistent with the information she provided when filing her April 2008 claim but not her more recent January 2013 videoconference hearing testimony.  Although a December 2007 pelvic sonogram also shows the presence of cysts, there is no suggestion they were related or attributable to her service or dated back to her service.

The lengthy period between the conclusion of her service and the earliest indication of cysts tends to refute any notion that she had had cysts since her military service.  In the appropriate circumstance, such as here, the Board may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology since service and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder).  

In Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records.  The Federal Circuit Court went on to indicate in Buchanan, however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  Consider also that, for non-combat Veterans providing non-medical related lay testimony regarding an event during service, Buchanan is distinguishable; the lack of documentation in service records must be weighed against the Veteran's statements.  See Bardwell v. Shinseki, 24 Vet. App. 36 (2010).  So it is permissible in this circumstance for the Board to draw a negative inference from the absence of any documented complaints or findings in the STRs and intervening post-service evaluation and treatment records, assuming, as concerning the STRs, they are complete or substantially complete in relevant part, which by all indications this Veteran's are.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).  The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).

That said, negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence.  Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom.  Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact).  Still though, ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence during and since service, prior to when first shown, when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).


Therefore, to reiterate, there is no competent and credible evidence in the file establishing the required nexus or correlation between the Veteran's eventual diagnosis of cysts and anything that had occurred many years earlier during the course of her military service.  Establishing entitlement to service connection not only requires proving she has the disability claimed, but also showing it is attributable to a disease, an injury or an event during her military service - hence, the nomenclature "service connection."  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").

In arriving at this decision, the Board again acknowledges that she has not been examined by VA to determine the nature and etiology of her cysts, including especially in terms of whether they are related or attributable to her military service or date back to her service.  Such an examination is scheduled when the medical evidence accompanying a particular claim is inadequate for rating purposes.  38 C.F.R. 3.326(a) (2012).  In this case, however, the medical evidence in service is adequate for rating purposes as it is completely devoid of any complaints or clinical findings of cysts, which is to be expected since the Veteran initially claimed the onset was in February 2000.  The same is true for the many years after service, here a decade, during which there was no evidence of the claimed disorder.  Moreover, there is no competent and credible evidence otherwise suggesting a relationship or correlation between her cysts and service.  

Because the preponderance of the evidence is against her claim of entitlement to service connection for fibroids and cysts, there is no reasonable doubt concerning her entitlement to be resolved in her favor.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  See also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  Thus, the claim is denied.


ORDER

Service connection for uterine fibroids and cysts is denied.


REMAND

Although the Veteran had a VA compensation examination in July 2009, in part, to address the likely etiology of her claimed Crohn's disease, ulcerative ileitis, and IBS, the examiner only seems to have provided an opinion regarding the Crohn's disease.  The rationale for examiner's negative opinion appears conflicting because the commenting physician stated the Veteran's bowel symptoms had started in service but that "Crohn's disease [had] started about five years ago".  No explanation was given as to why the bowel symptoms in service were not prodromal or early signs or indication of a gastrointestinal disorder that eventually progressed into Crohn's disease after service.  See 38 C.F.R. § 3.303(d).  Furthermore, a private physician, Dr. D.Z., suggested there was a possible link between the Crohn's disease and the Veteran's service, although this physician ultimately was unable to provide an opinion concerning this without speculating.  He nonetheless noted the symptoms that were documented between 1987 and April 2005 and stated the "described symptoms and findings on [the Veteran's] exams definitely can be manifestations of Crohn's ileocollitis, and they overlap significantly with her further symptoms".  He also noted she had been treated with medication that did not provide relief, which was also suggestive of Crohn's disease at that time.  It is also unclear whether ulcerative ileitis is part and parcel of Crohn's disease or a separate entity.  So as there is still insufficient information to decide this claim, an addendum opinion is required.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (Once VA undertakes the effort to provide an examination concerning a service-connection claim, even if not statutorily obligated to, it must provide an adequate one, else, notify the claimant why one cannot or will not be provided).

The record also shows the Veteran had a laparotomy in January 2008, and the diagnoses were ileo-cocectomy and Crohn's disease.  Since the procedure appears to have been performed as a consequence of the Crohn's disease, it should be considered as possibly intertwined and an opinion on this resultantly sought.

No opinion was provided with regards to the IBS and ulcerative ileitis.  Since these disorders appear to have similar symptoms to those noted in service, opinions are needed.

Regarding the Veteran's migraine headaches, she testified during her January 2013 videoconference hearing before the Board that her symptoms had worsened since her last VA compensation examination for this disability.  She said her last VA compensation examination for her headaches was in December 2012, but the most recent VA compensation examination (neurological) was instead in May 2009, and there are no additional medical records in her electronic ("Virtual VA") file.

She maintained during her hearing that she now routinely misses about 25-50 hours of work each week because of her migraines, and as evidence of this she pointed to a Family and Medical Leave Act (FMLA) record on file at her job affirming she takes about 7-8 hrs of leave per week.  And aside from medications, she said her doctor prescribes bed rest.  She also submitted a journal (daily log) denoting the frequency and severity of her migraines.

Given the substantial amount of time that has passed since her last VA compensation examination for this disability and her assertions of worsening headaches, VA has a duty to provide another examination for more current findings.  See Caffrey v. Brown, 6 Vet. App. 377 (1994); Allday v. Brown, 7 Vet. App. 517, 526 (1995).  See, too, Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992).

A review of the record also shows there are no treatment records concerning any of these remaining claimed disabilities since July 2008.  Therefore, all more recent treatment records regarding these conditions must be obtained and considered.  38 C.F.R. § 3.159(c).


Accordingly, these claims are REMANDED for the following additional development and consideration:

1.  Ask the Veteran to provide the names and addresses of all VA and non-VA health care providers who have treated her claimed IBS, laparotomy, Crohn's disease, ulcerative ileitis, and migraine headaches since July 2008.  After acquiring this information and any necessary authorization, obtain and associate any outstanding pertinent records with the claims file or Virtual VA e-folder.

A specific request should be made for treatment records from Dr. D.Z, Fayetteville Neurology, Womack Army Medical Center, and Fayetteville Gastrology.

The amount of efforts needed to be expended in obtaining any identified records depends on who has custody of them.  If there are not in the possession of a Federal department or agency, then 38 C.F.R. § 3.159(c)(1) controls, whereas subpart ()(2) controls if they are.

If any identified records are unobtainable (or do not exist), the Veteran must be appropriately notified of this and the record documented.  38 C.F.R. § 3.159(e)(1).


2.  Upon receipt of all additional records, schedule the Veteran for a VA intestinal compensation examination.  The entire claims file (i.e., any medical records contained in Virtual VA, CAPRI, and AMIE) and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination.  He or she should indicate the records have been reviewed.  All necessary tests should be performed and all findings reported in detail.  The examiner must take a complete history from the Veteran of her claimed IBS, laparotomy, ulcerative ileitis, and Crohn's disease.  

a) Based on the Veteran's history, a review the entire claims file to include the prior VA medical opinion and October 2009 statement from Dr. D.Z. and any records added to the claims file as a result of this remand, the evaluating physician must respond to the following:

b) Identify whether the Veteran currently has a diagnosis of IBS or ulcerative ileitis or has had a diagnosis at any time since the filing of her claims in April 2008.

c) With regards to each diagnosis of IBS, ulcerative ileitis, or Crohn's disease noted by the examiner, opine as to the likelihood (very likely, as likely as not, unlikely) the disorder incepted during the Veteran's military service from August 1983 to June 1989, including when considering her complaints in service, or is otherwise related or attributable to her service.

d) Discuss whether ulcerative ileitis is part and parcel of the Crohn's disease or, instead, a separate disease entity.

e) Indicate the likelihood (very likely, as likely as not, unlikely) the Veteran's laparotomy was related to her Crohn's disease.

f) Discuss the underlying reasoning of the responses, if necessary citing to specific evidence in the file supporting conclusions.  In particular, the examiner must discuss the significance or insignificance of the STRs documenting the Veteran had gastrointestinal complaints while in the military, such as those expressed in October 1984, March 1987, April 1987, and an undated problem list that noted abdominal pain.

g) Also comment on the October 2009 letter from Dr. D.Z and his suggestion that treatment records showing manifestations of symptoms from 1987 to 2004 could have been overlapping symptoms of one or more of the claimed disabilities.

3.  Ensure the report of the examination contains the necessary responses.  If not, take corrective action.  38 C.F.R. § 4.2.


4.  Then readjudicate these remaining claims.  If any claim is not granted to the Veteran's satisfaction, send her and her representative another SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims.

The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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).



______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs