Citation Nr: 1329473 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 03-25 881A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for pelvic inflammatory disease and removal of the left fallopian tube. 2. Entitlement to service connection for a gynecological disorder other than pelvic inflammatory disease and removal of the left fallopian tube, to include residuals of a hysterectomy. 3. Entitlement to service connection for heart murmur. 4. Entitlement to service connection for irritable bowel syndrome. 5. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities. 6. Entitlement to service connection for degenerative joint disease of multiple joints. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from August 1988 to July 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions promulgated in June 2001 and September 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In August 2011 and April 2013, the Board remanded these matters for further development. All issues save the issue of entitlement to service connection for pelvic inflammatory disease and removal of the left fallopian tube are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The competent medical evidence shows that pelvic inflammatory disease was initially diagnosed in service. 2. Pelvic inflammatory disease was not noted on the entrance examination. 3. There is no clear and unmistakable evidence that the initial infection of pelvic inflammatory disease occurred prior to active service, and the competent medical evidence shows that the initial infection of pelvic inflammatory disease occurred during active service. 4. The competent medical evidence shows that during the appeal period since the Veteran filed her claim in April 1999 she had had residuals of a removal of the left fallopian tube, which is a medical disability, and that a removal of the left fallopian tube was due to the in-service pelvic inflammatory disease. CONCLUSION OF LAW Pelvic inflammatory disease with a post-service residual removal of the left fallopian tube was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp 2012); 38 C.F.R. §§ 3.159, 3.301, 4.116, Diagnostic Code 7614 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. Given the fully favorable decision below, a detailed explanation of how VA complied with the VCAA is unnecessary. Pertinent law and regulations In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). No compensation shall be paid if the disability resulting from injury or disease in service is a result of a veteran's own willful misconduct. 38 U.S.C.A. §§ 105, 1110. The residuals of a venereal disease are not to be considered the result of willful misconduct. Consideration of service connection for residuals of venereal disease as having been incurred in service requires that the initial infection must have occurred during active service. 38 C.F.R. § 3.301. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304(b). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence"). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, 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. 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. See VAOPGCPREC 3- 2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The burden of proof is on VA to rebut the presumption by producing clear and unmistakable evidence that a disability existed prior to service. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The determination of whether there is clear and unmistakable evidence that a defect, infirmity, or disorder existed prior to service should be based on "thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof." 38 C.F.R. § 3.304(b)(1). Fallopian tube disease, injury, or adhesions, including pelvic inflammatory disease, are ratable disabilities. 38 C.F.R. § 4.116, Diagnostic Code 7614. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). To be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Analysis The Veteran's limited service treatment records show that in a May 1990 hospitalization a diagnostic laparoscopy revealed findings compatible with pelvic inflammatory disease. The March 2009 VA gynecological-conditions examiner stated that pelvic inflammatory disease is a sexually transmitted disease. Therefore, the first matter is whether the initial infection must have occurred during active service. At the February 1988 entrance examination, the Veteran denied having any history of venereal diseases. The pelvic examination was normal, and no gynecological disorders were diagnosed. Therefore, the pelvic inflammatory disease was not noted on entrance into service and the appellant is entitled to the presumption of soundness as to the pelvic inflammatory disease. The March 2009 VA examiner noted that sometime in early 1990 the appellant noted recurrent problems of irregular bleeding, pelvic pain, and cramps. That examiner opined that this symptomatology was most likely the onset of her pelvic inflammatory disease. There is no other competent medical evidence showing that the Veteran had pelvic inflammatory disease prior to service. There is no clear and unmistakable evidence that the initial infection of pelvic inflammatory disease occurred prior to active service, and the competent medical evidence shows that the initial infection of pelvic inflammatory disease occurred during active service. Therefore, service connection is warranted for pelvic inflammatory disease, a ratable disability. The remaining matter is whether the Veteran has had any other disorders secondary to the in-service pelvic inflammatory disease since she filed her claim in April 1999. In October 1994, the appellant underwent a partial left salpingectomy during treatment for an ectopic pregnancy. She underwent a left fallopian tube cystectomy in June 2007 at which time she also underwent a total abdominal hysterectomy. The March 2009 VA gynecological- conditions examiner opined in his July 2012 VA examination report that the removal of the left fallopian tube that occurred in 1994 was a consequence or complication secondary to residuals of the pelvic inflammatory disease. The competent medical evidence shows that during the appeal period since the Veteran filed her claim in April 1999 she had had residuals of a removal of the left fallopian tube in 1994, which is a medical disability, and that that removal of the left fallopian tube was due to the pelvic inflammatory disease. Thus, the grant of service connection will encompass the removal of the left fallopian tube as well. ORDER Entitlement to service connection for pelvic inflammatory disease and removal of the left fallopian tube is warranted. REMAND In the April 2013 remand, the Board directed the July 2012 VA gynecological-conditions examiner to express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the symptomatology that resulted in the June 2007 hysterectomy, as well as the hysterectomy itself, was a residual of the in-service pregnancy problems/ectopic pregnancy or pelvic inflammatory disease, and to provide a complete rationale for any opinion expressed. The examiner provided an opinion in a May 2013 addendum to the July 2012 VA examination report but no rationale for his opinion. Therefore, the AMC did not comply with the directives of the April 2013 remand, and another medical opinion is necessary. Stegall v. West, 11 Vet. App. 268 (1998). The July 2012 VA gynecological-conditions examiner reported that the ovaries were not removed during the June 2007 hysterectomy even though the operation report described the hysterectomy as being a total abdominal one. The Veteran's service treatment records show that she had a right ovarian cyst in May 1990. In October 1994, the diagnoses included bilateral ovarian cysts and extensive pelvic adhesions. In his March 2009 VA examination report, this examiner noted that pelvic adhesions continued. A medical opinion is necessary to determine whether the Veteran has had or still has ovarian cysts since she filed her claim in 1999 and whether she had pelvic adhesion since she filed her claim in 1999 and prior to the 2007 hysterectomy, and if so whether any of these disorders is related to the in-service pregnancy problems/ectopic pregnancy, right ovarian cyst, or pelvic inflammatory disease. Moreover, the Veteran's right fallopian tube was removed during the October 1994 military dependent hospitalization. There is no medical opinion addressing whether the removal of the right fallopian tube is related to the in-service pregnancy problems/ectopic pregnancy, right ovarian, cyst, or pelvic inflammatory disease. In the April 2013 remand, the Board directed the AMC to return the claims file to the VA examiner who conducted the October 2012 VA heart disease examination for an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed heart murmur had its onset during active service or is in any way was etiologically related to the Veteran's military service. In the October 2007 addendum to the July 2012 VA examination, the examiner did not address whether the current heart murmur is the same heart murmur as the one found in service. Consequently, the AMC did not comply with the directives of the April 2013 remand, and another medical opinion is necessary. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has received medical treatment as a military dependent, and the AMC should ask her to identify any treatment as military dependent for her gynecological disorder and heart murmur and then attempt to obtain any identified records. The March 2009 VA gynecological-conditions examination report shows that the Veteran had been receiving treatment at a VA medical facility in Orlando, Florida. The RO obtained all records from any facility in Orlando, Florida from 1996 to March 2000 and from November 2004 to May 2009. The AMC should obtain all records from all current and former VA medical facilities - the Orlando VA Outpatient Clinic, the Lakemont Campus, and the Orlando VA Medical Center - from March 2000 to November 2004 and from May 2009 to the present. The AMC last asked the Veteran to identify treatment for her gynecological disorder and heart murmur in April 2012 and should now afford her another opportunity to identify any treatment. Finally, in the August 2011 remand, the Board directed the AMC to issue to the Veteran a statement of the case as to his claims of service connection for irritable bowel syndrome, peripheral neuropathy, and degenerative joint disease. Although the Board did not address this in the April 2013 remand, the AMC has not issued a statement of the case on those issues. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); 38 C.F.R. § 19.26. Accordingly, the case is REMANDED for the following action: 1. The AMC should ask the Veteran to identify all treatment for her gynecological disorder and heart murmur. Regardless of her response, the AMC should obtain all records from all current and former VA medical facilities - the Orlando VA Outpatient Clinic, the Lakemont Campus, and the Orlando VA Medical Center - from March 2000 to November 2004 and from May 2009 to the present. 2. The AMC should ask the Veteran to identify the times and locations of any treatment as a military dependent for her gynecological disorder and heart murmur. If the appellant identifies any treatment besides the October 1994 hospitalization at Camp Lejeune, North Carolina, the AMC should contact the service department and obtain any identified military dependent records. The Board notes that the Veteran's current surname, which was her surname on discharge, was not her surname when she filed her claim in April 1999 and that her military dependent records may be under a surname other than her current one. 3. Thereafter, after obtaining any additional records to the extent possible, the AMC should obtain an opinion by the VA gynecologist who performed the March 2009 and July 2012 examiner. If that examiner is unavailable, the requisite medical opinion should be obtained from another appropriately qualified clinician. The examiner must express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the symptomatology which resulted in the June 2007 hysterectomy, as well as the hysterectomy itself, was a residual of the in-service pregnancy problems/ectopic pregnancy, right ovarian, cyst, or pelvic inflammatory disease. The Board notes that service connection is in effect for pelvic inflammatory disease and removal of the left fallopian tube. The examiner must express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran has had or still has ovarian cysts since she filed her claim in April 1999; whether at least as likely as not (50 percent or greater likelihood) that she had pelvic adhesion since she filed her claim in April 1999 and prior to the 2007 hysterectomy; and if she has or has had any of disorders since April 1999 whether it is at least as likely as not (50 percent or greater likelihood) that any of these disorders is related to the in-service pregnancy problems/ectopic pregnancy, right ovarian cyst, or pelvic inflammatory disease. A complete rationale for any opinion expressed must be provided. 4. After obtaining any additional records to the extent possible, the AMC should obtain an opinion by the July 2012 examiner. If that examiner is unavailable, the requisite medical opinion should be obtained from another appropriately qualified clinician. The examiner must express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran's currently diagnosed heart murmur is the same heart murmur noted in May 1990 or otherwise related to that heart murmur noted in May 1990, and if so whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran has any current heart disability as a result of the current heart murmur. A complete rationale for any opinion expressed must be provided. 5. To help avoid future remand, the RO must ensure the required actions have been accomplished (to the extent possible) in compliance with this remand. If any action is not undertaken, or is taken in a deficient manner, such as a complete rationale for any opinion not being provided, undertake corrective action before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After the above development is completed and any other development that may be warranted, the RO/AMC must readjudicate the claims. If any benefit sought is not granted, the Veteran and her representative must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 7. The RO/AMC should also issue to the Veteran a statement of the case as to her claims of service connection for irritable bowel syndrome, peripheral neuropathy, and degenerative joint disease of multiple joints, and advise her of the time period in which to perfect an appeal. If and only if she perfects an appeal as to these matters, should the case be returned to the Board for further consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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). ______________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs