Citation Nr: 1335122 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 07-33 071 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for residuals of ovarian cancer. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Young, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1978 to June 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision that was issued by the Regional Office (RO) in Columbia, South Carolina. In an August 2011 decision, the Board denied the Veteran's claim for service connection for chronic venous hypertension and remanded the matter currently before the Board for further development. Review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT The evidence does not show that it is at least as likely as not that ovarian cancer, or its residuals, had onset during service, was manifested within a year after service, or that it was caused or aggravated by service. CONCLUSION OF LAW The criteria for service connection for ovarian cancer, or its residuals have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this matter, substantially compliant notices were sent to the Veteran in June 2006 and most recently in August 2011. The claim was most recently readjudicated in April 2012 in a supplemental statement of the case (SSOC). Regarding VA's duty to assist, VA has obtained the Veteran's service treatment records (STRs), private treatment records, VA medical opinions, and the written contentions of the Veteran and her representative. The Board finds the September 2011 VA medical opinion/examination obtained in furtherance of the Veteran's claim to be adequate, as it is based upon a complete review of the Veteran's claims file, consideration of the Veteran's statements, and the VA examiner provided written rationale for the conclusions reached. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). VA has substantially complied with the notice and assistance requirements. II. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may also be granted for any injury or disease diagnosed after service, when the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Competent medical evidence includes evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent lay evidence is 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). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau, 492 F.3d at 1372. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Factual Background Initially, the Board notes that it has reviewed all the evidence in the Veteran's paper and electronic claims files. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran contends that she began experiencing symptoms of abdominal pain and frequent, painful urination during service, which she states led to a diagnosis of stage II ovarian cancer. A May 1986 Report of Medical Examination, prepared for the Veteran's discharge from service, reveals a normal pap smear test in December 1985, and the Veteran's genitourinary system and pelvis were noted as normal. The report also contains a notation that the Veteran experienced frequent painful urination of unknown etiology in 1984 and that she had a cyst removed from the back of her neck. In the Veteran's accompanying May 1986 Report of Medical History, in pertinent part, she denied a history of stomach, liver, or intestinal trouble. However, she did report a history of frequent or painful urination and a history of tumor, growth, cyst, or cancer. The Report of Medical History did not include a physician's written summary. The Veteran's STRs also reveal treatment for a ganglion cyst of her left wrist, complaints of lower abdominal pain, and multiple complaints of an upset stomach, including nausea symptoms. In May 1986, the same date of her separation examination, a treatment note indicated the Veteran had pain and pressure with urination for two days and complaints of an upset stomach. The Veteran was reassured that she probably had gastroenteritis. There was no evidence of an urinary tract infection, perforation, ectopic pregnancy, and other serious pathologies were ruled out. Post-service treatment records indicate the Veteran had intermittent pain in her lower abdomen in September 1987. There was no indication of a urinary tract infection and the physician indicated that the Veteran's pains were probable due to an intrauterine device (IUD). A December 1987 History and Physical Examination report indicates the Veteran received emergency room treatment in October 1987 for severe lower quadrant abdominal pain bilaterally. The Veteran's IUD was removed and a sonogram was performed which revealed growths on her left ovary. The Veteran continued having pain and reported that she had a "severe attack" one and a half years prior, while she was still in service. A December 1987 treatment note indicates that the Veteran complained of abdominal pain which began in September or October 1987 and did not resolve. The Veteran was diagnosed with ovarian carcinoma in December 1987 and underwent a total hysterectomy and bilateral oophorectomy. In a December 2007 letter, the Veteran's private physician (Dr. S. M.) indicated that he had treated the Veteran for approximately 12 years and opined that "it is very possible that the onset of her ovarian cancer began while she was in service or shortly thereafter [within one year of discharge]." Dr. S. M.'s stated that the fact that the tumor had spread beyond the ovaries to her sigmoid colon, is a solid indication that her tumor was longstanding at the time of her initial diagnosis. Dr. S. M. also stated that ovarian cancer symptoms are often vague and non-specific and are often overlooked by women and physicians. The symptoms can include nausea, vomiting, and non-specific gastrointestinal symptoms. The Veteran was afforded a VA examination in February 2008. The examiner noted that the appellant reported gastrointestinal symptoms during service, but the examiner stated that based on information available to him, it was less likely than not that the Veteran's symptoms which she experienced during service were secondary to ovarian cancer. However the examination report was incomplete, so the Board remanded for another medical opinion. In September 2011, a VA medical examiner opined that it is less likely than not that the Veteran's ovarian cancer had its onset during or within one year of service and the rationale for her opinion was that the examiner was unable to find any evidence which would support the Veteran's contentions that her ovarian cancer had its onset during her time in the service. The examiner stated that stage II ovarian cancer with seeding of the sigmoid colon is not advanced and does not indicate longstanding duration of ovarian cancer. The examiner indicated that it would be speculative to state that it is at least as likely as not that the Veteran's ovarian cancer had its onset within one year of service as there are no complaints or no compelling medical evidence regarding the onset of her cancer earlier, either during her time in the military or in the year immediately after her discharge from service. The examiner specified that the claims file had been reviewed in its entirety. The examiner noted that the only mentioning of complaints consistent with ovarian cancer that she found was a reference to September or October of 1987 when the Veteran did have some aspect of pain; that was greater than one year after the service. The examiner's opinion was based on a review of all relevant medical information, as well as the known course of ovarian cancer, and her knowledge of ovarian staging. The examiner noted that she reviewed the note from the Veteran's private physician stating that the Veteran's ovarian cancer, when it was discovered, was most likely of longstanding duration due to its spread beyond the ovaries to her sigmoid colon. The examiner noted that she disagreed with the private physician because the Veteran had early stage II ovarian cancer that does not indicate a longstanding duration. IV. Analysis The preponderance of the evidence of record weighs against the Veteran's claim for service connection for residuals of ovarian cancer. The Board has considered the Veteran's contentions and while lay persons are competent to provide opinions on some medical issues, the specific issue in this case, however, falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 429 F.3d at 1377 (lay persons not competent to diagnosis cancer). The Veteran is competent to report observable symptoms, such as abdominal pain and frequent, painful urination, but her opinion as to the cause of the symptoms simply cannot be accepted as competent evidence. Id. The Board acknowledges that the Veteran was diagnosed with stage II ovarian cancer in December 1987. As the Veteran's ovarian cancer was not diagnosed within one year of service and the Veteran's pain symptoms began in September or October 1987, the evidence does not indicate that any presumption would apply. 38 C.F.R. § 3.303(d). Moreover, the evidence fails to indicate a nexus between the Veteran's residuals of ovarian cancer and her military service. Dr. S. M. noted that it was "possible" that that the onset of her ovarian cancer began while she was in service or within one year of the Veteran's discharge from service. Medical opinions that are speculative, general or inconclusive in nature cannot support a claim. See 38 C.F.R. § 3.102 (2013); see also Morris v. West, 13 Vet. App. 94, 97 (1999) (diagnosis that appellant was "possibly" suffering from schizophrenia deemed speculative); Hogan v. Peake, 544 F.3d 1295, 1298 (Fed. Cir. 2008) (the Board may discount the value of competent medical evidence based on factors including the lack of a definitive statement as to etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board has authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). Dr. S. M.'s statements regarding the vague and non-specific nature of the symptoms associated with ovarian cancer are also not conclusive as to determining whether the Veteran's ovarian cancer is connected to her military service. As such, this opinion is not afforded any probative value. The Board finds that the September 2011 VA medical opinion to be more probative. As discussed above, the September 2011 VA examiner reviewed the evidence of record, her opinion accompanied by reasoned medical explanations in support of the opinion provided, and a definitive statement as to etiology of the Veteran's ovarian cancer is provided. The examiner discussed the medical opinion provided by the Veteran's private physician and she provide an explanation for her disagreement with the opinion expressed. The VA medical examiner opined that it is less likely than not that the Veteran's ovarian cancer had the onset within one year of her time in the service and as the examiner was unable to find any evidence which would support the Veteran's contentions that her ovarian cancer had onset during her time in service. The examiner stated that stage II ovarian cancer with seeding of the sigmoid colon was not advanced and does not indicate longstanding duration of ovarian cancer. The examiner indicated that it would be speculative to state that it is at least as likely as not that the Veteran's ovarian cancer had its onset within one year of service as there are no complaints or no compelling medical evidence regarding the onset of her cancer earlier, either during her time in the military or in the year immediately after her discharge from service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). ORDER Service connection for residuals of ovarian cancer is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs