Citation Nr: 1333440 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-00 265 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a bilateral foot disability, to include pes planus. 2. Entitlement to service connection for residuals of Bartholin cyst. 3. Entitlement to service connection for total uterine hysterectomy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from April 1977 to June 1977. This matter has come before the Board of Veterans' Appeals (Board) on appeal from March 2003 and December 2006 rating decisions of the Atlanta, Georgia, Department of Veterans Affairs (VA) Regional Office (RO). The March 2003 rating decision declined to reopen a claim of service connection for bartholinitis resulting in a hysterectomy and denied service connection for bipolar nervous condition and flat feet. The Veteran testified at a video conference hearing before the undersigned Acting Veterans Law Judge in February 2005. A transcript of the hearing is associated with the claims file. In February 2005, VA received written notification from the Veteran that she was withdrawing her appeals on the issues of service connection for bipolar disorder and pes planus. In a May 2005 decision, the Board dismissed the appeals for service connection for bipolar disorder and pes planus. The remaining issue of whether new and material evidence has been received to reopen a claim for service connection for residuals of Bartholin cyst was remanded for further development. In May 2006, the Veteran filed a claim to reopen the issue of service connection for pes planus. That claim was denied in a December 2006 rating decision. In January 2007, the Veteran filed a notice of disagreement (NOD) with that decision. The Veteran filed another claim to reopen the issue of service connection for pes planus in April 2007, which was denied in an April 2008 rating decision. The Veteran submitted a statement in June 2008 that was likewise accepted as a new claim, which was denied in a June 2009 rating decision. In a June 2008 decision, the Board denied the Veteran's claim of entitlement to service connection for total uterine hysterectomy and she appealed the decision to the U.S. Court of Appeals For Veterans Claims (Court). In a February 2010 Memorandum Decision, the Court vacated the June 2008 Board decision and remanded the case to the Board for further appellate review. In December 2010, the Board reopened the claims of service connection for pes planus and for total uterine hysterectomy, then remanded this case for further development. In July 2013, the Board remanded this case for further development. As explained below, the Veteran is found to have residuals of Bartholin cysts, specifically vulvar tenderness. Her claimed residual of total uterine hysterectomy, however, is not found to be related to Bartholin cysts. In order to properly address these issues, the Board has bifurcated them as reflected on the title page. FINDINGS OF FACT 1. The competent and credible evidence does not show that the Veteran's pes planus is related to her military service. 2. The Veteran's Bartholin cysts clearly and unmistakably pre-existed her military service. 3. The competent and credible evidence shows that the Veteran has residuals of Bartholin cysts, specifically vulvar tenderness, that are related to her military service. 4. The competent and credible evidence does not show that the Veteran's total uterine hysterectomy is related to her military service. CONCLUSIONS OF LAW 1. Pes planus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2013). 2. Vulvar tenderness was caused by the Veteran's military service. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2013). 3. Total uterine hysterectomy was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In claims to reopen, VA must both notify a claimant of the evidence and information necessary to reopen the claim, as well as the evidence and information required to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy the above requirement, the Secretary must consider the bases for the denial in the prior decision and provide the claimant with a notice letter describing what evidence would be necessary to substantiate those elements required to establish service connection that were previously found insufficient. In the present case, complete notice was not issued prior to the adverse determination on appeal. However, fully compliant notice was later issued in a February 2008 communication. The claims were thereafter readjudicated. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting her in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, her statements in support of the claim are of record, including testimony provided at a February 2005 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's December 2010 remand, VA sought additional treatment records from the Veteran's in-service hospitalization. In compliance with the Board's July 2013 remand, VA obtained additional VA treatment records and VA provided the Veteran with a foot examination in August 2013. This examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation, then offered an opinion as to the nature of the claimed disabilities, accompanied by a rationale. Therefore, this examination is adequate for VA purposes. Thus VA has complied with the December 2010 and July 2013 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). With respect to the opinions regarding the gynecological disorders, the Board ultimately finds that the VHA opinion obtained lacks sufficient rationale and findings to rebut the presumption of soundness standard under 38 U.S.C.A. § 1111 as it pertains to Bartholin cysts and residuals. This examiner opinion, as well as a prior VA April 2002, is fully adequate to address the hysterectomy claim. Earlier remands addressed the issue of whether new and material evidence had been received sufficient to reopen the underlying claims. As those claims have been reopened, the question of compliance with those remands is moot. The Court has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At the hearing the undersigned identified the issue, sought information as to treatment to determine whether all relevant records had been obtained, and sought information as to the nature and onset of the claimed disabilities. Ultimately the claim was remanded for additional records and medical opinions. The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant. Moreover, neither the Veteran nor her representative has asserted that VA failed to comply with these duties; they have not identified any prejudice in the conduct of the Board hearing. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Bilateral Foot Disability Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). During the pendency of the appeal, the Veteran has been shown to have bilateral pes planus, metatarsalgia, and hallux valgus. Thus the current disability requirement is met with regard to these diagnoses. The Veteran's service treatment records show no complaints of, treatment for, or diagnosis of a foot disability or injury. Instead, the Veteran has argued that her current bilateral foot disability was caused by marching in boots during service. While no in-service occurrence or injury is noted, VA concedes that wearing boots during marches is consistent with the nature and circumstances of basic training. Thus, the in-service injury requirement is met with regard to the claimed injury of wearing boots during marches. The Board notes that none of the diagnosed foot conditions are among those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). As such, the Veteran's reports of continuously recurring symptoms are insufficient to establish service connection. See Walker v. Shinseki, 708 F.3d 1331, (Fed. Cir. 2013). The final requirement for direct service connection is a nexus between the in-service disease or injury and the Veteran's current disability. The Veteran has stated that she believes the comments in the April 2002 VA examination diagnosis section indicate that this examiner found a positive medical nexus between her current conditions and her military service. The comments at issue are "1. Bilateral flatfeet. I note that the veteran had a normal foot exam on the entrance exam. She now has flat feet. 2. Metatarsalgia dating from the time of the military per the veteran's history." These statements do not suggest a positive medical nexus opinion for either disability. In the case of the Veteran's flatfeet, the examiner notes that the Veteran did not have flatfeet when she entered service. That is not in dispute. Likewise, the examiner notes that the Veteran does have flatfeet now. Again, this is not in dispute. What is missing from this is a medical nexus opinion or link between the Veteran's service in 1977 and the development of flatfeet many years later. Restatement of the two undisputed facts of a current diagnosis and lack of such a disability existing prior to service does not equate to such a medical nexus opinion. With regard to the second diagnosis, the examiner is restating the Veteran's contention that this disability began in service without any additional medical comment. A mere transcription of lay history, unenhanced by any additional medical comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Thus, the examiner's comment that the Veteran provided a lay history of metatarsalgia since her military service is neither a medical nexus opinion nor corroborating evidence that such an in-service onset in fact occurred. The August 2013 VA examiner opined that the "Veteran's current bilateral [hallux valgus] and pes planus "did not have its onset in service and is not related to any in-service disease, event, or injury." In the accompanying rationale, the examiner explained that there was no objective evidence of in-service foot problems or of an in-service disease or injury that could have caused the Veteran's current foot problems. In explaining the most common causes of pes planus, the examiner noted that a physiological variant is the most common cause with "adult acquired flatfoot" due to injury, illness, unusual or prolonged stress to the foot, faulty biomechanics, or as part of the normal aging process. The examiner noted that adult acquired flat foot was most common in women over the age of 40 and known risk factors included obesity, hypertension, and diabetes. The examiner further noted "[t]here is no medical evidence which would indicate that prolonged walking, marching or standing, on hard surfaces contributes to the development of pes planus." He cited medical studies from both Australia and the United States to support this opinion. To the extent that the Veteran herself believes that her foot disability was due to her military service, the Board acknowledges that a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, the Veteran has stated during the pendency of her appeal that her foot pain began in service and continued since that time; thus, suggesting the time of immediately observable cause-and-effect relationship contemplated by Jandreau. This contention, however, is consistent with the evidentiary record. In this respect, no joint abnormality was noted at the time of her January 1978 VA examination, three and a half years after the Veteran's separation from service. In any event, the VA examiner considered the Veteran's contentions in light of the entire evidentiary record. The Board places greater probative weight on the opinion of the August 2013 VA examiner who has greater expertise and training than the Veteran in diagnosing the nature and etiology of foot disorders. In short, for reasons expressed immediately above, the claim of service connection for foot disability must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Residuals of Bartholin Cysts Generally, a veteran is presumed to be in sound condition except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C.A. § 1132; 38 C.F.R. § 3.304(b). Bartholin cysts were not noted on the Veteran's November 1976 induction examination. Therefore the presumption of soundness applies. In order to rebut the presumption of soundness, the record must contain clear and unmistakable evidence that the Veteran's acquired psychiatric disability pre-existed her active service and clear and unmistakable evidence indicating it was not aggravated during service. 38 U.S.C.A. §§ 1111, 1113; 38 C.F.R. § 3.304(b); see also VAOPGCPREC 3-2003 (July 16, 2003); Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). In this case, the Veteran conceded in her lay statements that she had Bartholin cysts prior to service. On August 26, 1977, the Veteran reported that she had a history of boils which had required surgery and that another boil had formed on her buttocks three days prior. The military examiners determined that her Bartholin cysts existed to prior to service and a VHA examiner has opined that there is clear and unmistakable evidence that her Bartholin cysts existed to prior to service. Thus, the Board finds that there is clear and unmistakable evidence that the Veteran's Bartholin cysts pre-dated her service. A VHA examiner in The remaining requirement to rebut the presumption of soundness is clear and unmistakable evidence that this condition was not aggravated beyond its natural progress during service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). The Veteran's service treatment records show an increase in the symptoms of this condition during her period of service. Indeed, despite having no recorded symptoms at the time of her induction, the Veteran's service treatment records show that she was discharged shortly after her entrance into service due to this disability. Nevertheless, Dr. A.F. has opined that it is undebatable that the Veteran's Bartholin cysts were not aggravated beyond the normal progress of the disorder during service. Dr. A.F. did not, however, provide a rationale for this opinion. Absent such a rationale, the Board cannot determine whether there is clear and unmistakable evidence that this condition was not aggravated beyond its natural progress during service. Therefore this opinion is insufficient to meet the onerous evidentiary standard of clear and unmistakable evidence. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003). As this is VA's burden, failure to meet it benefits the Veteran and the presumption of soundness is not rebutted. See 38 C.F.R. § 3.304(b). Thus, the Veteran is entitled to service connection for her Bartholin cysts and any residuals. In this regard, the April 2002 VA examiner found that the Veteran had residuals of bartholinitis manifested by vulvar tenderness. In her lay statements, the Veteran has implied that she had her labia removed as a result of this disability. This is not confirmed by the medical evidence. Additionally, a VHA examiner upon review of the claims folder confirmed that the Veteran's labia was present in service. Instead, the record shows multiple labial incisions to remove cysts. As such, service connection is warranted for vulvar tenderness only. Total Uterine Hysterectomy The Veteran has claimed that her total uterine hysterectomy, which was performed in August 1991, was caused by her Bartholin cysts. The record shows that the Veteran underwent a hysterectomy in August 1991. Thus, the current disability requirement is met. As noted above, VA has failed to rebut the presumption of soundness with regard to the Veteran's Bartholin cysts. Therefore, the in-service occurrence requirement is also met. The third and final requirement for direct service connection is a nexus between the in-service Bartholin cysts and her hysterectomy. In this regard, the April 2002 VA examiner noted that the Veteran's hysterectomy was due to uterine fibroids, not Bartholin cysts. While this was noted to be based on the history provided by the Veteran, it is reinforced by the medical evidence of record that shows a diagnosis of leiomyoma uteri (uterine fibroids) contemporaneous with the Veteran's hysterectomy. The VHA examiner also found that the Veteran's hysterectomy was due to a large fibroid uterus and not related to her Bartholin cyst condition. To date, there is no positive medical nexus opinion linking the Veteran's in-service Bartholin cysts and her hysterectomy. To the extent that the Veteran herself believes that her total uterine hysterectomy was due to her military service, the Board again acknowledges that a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. Jandreau, 492 F.3d 1377. Here, the question of the etiology of the Veteran's total uterine hysterectomy is not the type of immediately observable cause-and-effect relationship contemplated by Jandreau. In any event, the Board places significantly greater probative weight to the opinions of the VA and VHA examiner's who have greater expertise and training than the Veteran in speaking to the nature and etiology of a gynecological disorder. In short, for reasons expressed immediately above, the claim of service connection for total uterine hysterectomy must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 54-56. ORDER Service connection for a bilateral foot disability, to include pes planus, is denied. Service connection for vulvar tenderness, as a residual of Bartholin cyst, is granted. Service connection for total uterine hysterectomy, is denied. ____________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs