Citation Nr: 1334191 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 09-28 312 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a cervical/gynecological condition, to include damage to the vulva, uterus, fallopian tubes, and ovary. 2. Entitlement to service connection for a respiratory disease, to include chronic obstructive pulmonary disease (COPD), and to include as due to chemical exposure. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1978 to March 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri and a February 2009 rating decision by the VA RO in Los Angeles, California. Jurisdiction over this appeal was transferred to the RO in Los Angeles, California. In April 2013, the Board remanded the Veteran's claims for additional development. The claims have been returned to the Board for further appellate review. The issues of entitlement to special monthly compensation for loss of a creative organ; entitlement to service connection for scars; entitlement to special monthly pension based on a need for regular aid and attendance of another person; and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The evidence does not demonstrate that a cervical/gynecological condition, to include damage to the vulva, uterus, fallopian tubes, and ovary, is causally or etiologically related to active duty. 2. The evidence does not demonstrate that a respiratory disease, to include COPD, is causally or etiologically related to active duty, to include as due to chemical exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical/gynecological condition, to include damage to the vulva, uterus, fallopian tubes, and ovary, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 2. The criteria for service connection for a respiratory disease, to include COPD, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). The record shows that letters dated in November 2007 and October 2008 satisfied the duty to notify provisions prior to initial AOJ adjudication of the issues on appeal. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was also notified of regulations pertinent to the establishment of an effective date and disability rating in those letters. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also finds the duty to assist the Veteran has been satisfied in this case. The record includes the Veteran's service treatment records, VA treatment records, and identified private treatment records. The record also shows that the Veteran was scheduled for a VA examination in January 2008 but did not appear for the examination. In addition, the Board remanded the Veteran's claim in April 2013 for further development. The Board instructed that the RO/Appeals Management Center (AMC) obtain all treatment records for the Veteran from the VA Medical Center in Loma Linda, California, and any associated outpatient clinics dated from May 2008 to the present. The record contains VA treatment records dated through June 2013. In addition, the Board directed that the RO/AMC schedule the Veteran for VA examinations to determine the nature and etiology of any current cervical/gynecological condition and any current respiratory disease, to include COPD. The evidence shows the Veteran did not report for the VA examinations scheduled for July 2013. 38 C.F.R. § 3.159(c)(4). In correspondence dated in August 2013, the Veteran asserted that her examinations had been cancelled by her treating nurse practitioner because her psychiatric disorder prevented her from attending such examinations. The Veteran also stated that she had undergone VA examination in the past and that because there was sufficient evidence to support her claims, there was no need for her to undergo additional examination. In an October 2013 written brief presentation, the Veteran's representative acknowledged that the Veteran did not report for the examinations and requested that the Board review the Veteran's case based on the record. The record does not demonstrate that the Veteran has requested to have the examinations rescheduled. As such, scheduling additional examinations in this case is not required. 38 C.F.R. § 3.655 (2013); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street."). Therefore, the Board finds the RO/AMC substantially complied with the remand directives. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998). There is no indication in the record that any additional evidence relevant to the claims is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. All of the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matters decided. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Service connection may be established for a disability resulting from a disease or injury incurred in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Federal Circuit recently held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies only to chronic diseases explicitly recognized in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338 (2013). Cervical/gynecological condition, to include damage to the vulva, uterus, fallopian tubes, and ovary The Veteran contends that she has damage to the vulva, uterus, fallopian tubes, and ovary as a result of the draining of a cyst and years of infections during active duty. She asserts that she first experienced chronic pelvic pain, severe cramping, and a yellow vaginal discharge in service and was diagnosed with salpingitis and pelvic inflammatory disease. The Veteran reports that she experienced chronic pelvic infections and gynecological symptoms throughout her time in service. She states that physicians diagnosed cervical dysplasia and pelvic inflammatory disease sometime between December 1982 and January 1983 and that she has continued to experience problems since service. The Veteran states that because of her in-service conditions and lack of proper treatment during service, intercourse is painful and she can no longer have children. Multiple service treatment records document the Veteran's complaints of and treatment for gynecological symptoms, to include severe cramping, pain, and vomiting. The record also demonstrates in-service diagnoses of condyloma; salpingitis; pelvic inflammatory disease; chronic abdominal pain, unknown etiology; and chronic pelvic pain, unknown etiology. As a result, the record demonstrates an in-service disease for purposes of service connection. With respect to a current disability, a November 2006 VA cervical smear was negative for intraepithelial lesion or malignancy. A December 2006 VA treatment record reflects an assessment of normal, well woman and condyloma. The record indicates that in 1984, an abnormal pap smear had revealed dysplasia, and it was noted that physicians had performed cryotherapy as treatment. The record also indicates the Veteran had a history of sexually transmitted infections including condyloma. A January 2007 pap smear reflected no evidence of malignancy. A September 2007 VA treatment record shows the Veteran reported that she had some surgery done in the area of the clitoris. After the surgery, the Veteran had no feeling in the area, lost all interest in sex, was unable to enjoy sexual relations, and had pain when having sexual relations. She also reported that due to the length of time that she went undiagnosed, the Veteran could no longer have children and that her fallopian tubes had been damaged. A November 2007 VA record shows the Veteran reported diagnoses of cervical dysplasia and pelvic inflammatory disease following separation from service. She reported that a physician had removed precancerous cells from her cervix and that her gynecological conditions had caused infections that affected her lungs. The Veteran stated that she could not provide contact information for the private physician or copies of the medical records documenting said treatment. In this case, the evidence does not demonstrate a diagnosis of a cervical/gynecological condition, to include damage to the vulva, uterus, fallopian tubes, or ovary, during the pendency of the appeal. In addition, the medical evidence does not include an etiological opinion relating any current cervical/gynecological condition to active duty, to include the conditions documented therein. The Veteran did not report for the two VA examinations scheduled for the purpose of determining the nature and etiology of any current cervical/gynecological condition. As a result, the only evidence indicating an association between a current cervical/gynecological condition and active duty are the Veteran's own assertions. The Veteran is competent to describe symptoms such as pain and loss of sensation, which she is able to perceive through the use of her senses. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge). However, it is well established that a layperson without medical training, such as the Veteran, is not qualified to render medical opinions regarding the etiology of certain disorders and disabilities, to include cervical/gynecological conditions. See 38 C.F.R. § 3.159(a)(1). In certain unique instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, as the origin or cause of a cervical/gynecological condition is not a simple question that can be determined based on mere personal observation by a lay person, the Veteran's lay testimony is not competent to establish medical etiology or nexus in this case. See Jandreau, 492 F.3d at 1376-77; see also Davidson, 581 F.3d at 1316. It is not shown that the Veteran or her representative is otherwise qualified through specialized education, training, or experience to offer a medical opinion as to the etiology of any cervical/gynecological condition. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As such, the Veteran's lay opinion does not constitute competent medical evidence and lacks probative value. In addition, as there are no cervical/gynecological conditions listed as chronic diseases under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) are not applicable in this case. Therefore, the Veteran's statements regarding continuity of symptomatology since service are not sufficient evidence to establish service connection. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for a cervical/gynecological condition, to include damage to the vulva, uterus, fallopian tubes, and ovary. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine does not suffice to establish entitlement to the benefit sought, and service connection must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Respiratory disorder, to include COPD, and to include as due to chemical exposure The Veteran asserts that she currently has COPD as the result of active duty. She reports that during service she suffered from chronic bronchitis, a chronic cough, and pneumonia, and she asserts that these symptoms are related to her current diagnosis of COPD. The Veteran also states that her COPD may be the result of exposure to fumes from a chemical plant located next to her base during active duty. Service treatment records demonstrate diagnoses of chronic cough, pharyngitis, and bronchitis. Therefore, the Board finds the record demonstrates an in-service disease for purposes of service connection. In addition, X-ray examination in November 2006 reflects an impression of COPD without evidence of acute infiltrate or congestion, and a June 2009 VA treatment record shows the Veteran's current medical problems included COPD. As a result, the Board finds the evidentiary requirement of demonstrating a current disability has been satisfied. Hickson v. West, 12 Vet. App. 247, 253 (1999). With respect to a nexus between the Veteran's current disability and in-service disease, the medical evidence does not include a competent etiological opinion relating the Veteran's COPD to her active duty service. The Veteran did not report for the VA examinations scheduled to determine the nature and etiology of her COPD, and the record does not include a competent medical opinion from a physician linking her COPD to active duty, to include any in-service chemical exposure. As such, the only evidence indicating a nexus between the Veteran's COPD and active duty, to include in-service chemical exposure, are the Veteran's assertions. Again, the Veteran is competent to describe symptoms that she is able to perceive through the use of her senses. See Layno, 6 Vet. App. at 469-71. However, a layperson without medical training is not qualified to render medical opinions regarding the etiology of certain disorders and disabilities, such as COPD. See 38 C.F.R. § 3.159(a)(1). The origin or cause of a respiratory disorder such as COPD is not a simple question that can be determined based on mere personal observation by a lay person, and as such, the Veteran's lay testimony is not competent to establish medical etiology or nexus. See Jandreau, 492 F.3d at 1376-77; see also Davidson, 581 F.3d at 1316. It is not shown that the Veteran or her representative is otherwise qualified through specialized education, training, or experience to offer a medical opinion as to the etiology of a respiratory disorder, to include COPD. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As such, the Veteran's lay opinion does not constitute competent medical evidence and lacks probative value. In addition, COPD is not one of the conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a), and as such, the provisions of 38 C.F.R. § 3.303(b) are not applicable with respect to this issue. Walker, 708 F.3d at 1338. Therefore, the Veteran's statements regarding continuity of symptomatology are not sufficient for purposes of establishing service connection. Based on the foregoing, the Board finds the preponderance of the evidence is against a grant of service connection for a respiratory disorder, to include COPD, and to include as due to chemical exposure. The Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable, and service connection must be denied. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 55-56. ORDER Entitlement to service connection for a cervical/gynecological condition, to include damage to the vulva, uterus, fallopian tubes, and ovary, is denied. Entitlement to service connection for a respiratory disorder, to include COPD, and to include as due to chemical exposure, is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs