Citation Nr: 1342934 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 04-05 633 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a hysterectomy. 2. Entitlement to special monthly compensation (SMC) for loss of use of a creative organ. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran served on active military duty from July 1982 to August 1989. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 2006, March 2010, June 2011, and November 2012, the Board remanded the claims for the development of additional medical evidence; specifically, to obtain an adequate VA medical opinion. The Board subsequently obtained an independent specialist medical opinion in May 2013. A review of the Virtual VA paperless claims processing system reveals duplicative evidence pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran was treated for pelvic discomfort, abdominal cramps, vaginal bleeding, irregular menses, painful intercourse, and ovarian cyst during service. 2. The Veteran had a post-service hysterectomy in March 2002. 3. A hysterectomy with any residuals is not etiologically related to symptoms, findings, or treatment in service. 4. Because the Veteran is not entitled to service connection for residuals of a hysterectomy, she also is not entitled to SMC due to the loss of use of a creative organ. CONCLUSIONS OF LAW 1. The criteria for service connection for a hysterectomy are not met. 38 U.S.C.A.§§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. The criteria for entitlement to SMC for loss of use of a creative organ have not been met. 38 U.S.C.A. §§ 1114(k), 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.350(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between a Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a June 2002 letter, the RO provided preadjudicatory notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection on the merits, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The Veteran received additional letters in September 2006, July 2009, and August 2010. The Veteran also received a notice letter that included the provisions for disability ratings and for the effective date of the claim. The Veteran was afforded a VA examination in March 2004, August 2009, and July 2011. A May 2013 independent medical expert opinion is also of record. 38 C.F.R. § 3.159(c)(4) (2013). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations and the expert independent medical opinion are fully informed, medically competent and fully responsive to adjudicate this appeal. A physical examination was completed during the VA examinations. In May 2013, the independent specialist provided a medical opinion based on a discussion of pertinent findings in the STRs and medical history shown in post-service treatment records and clarified whether findings in service led to conditions necessitating a post-service hysterectomy. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis); see also Nieves-Rodriguez, 22 Vet. App. at 295 (holding that "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion"). Cumulatively, VA's medical development (i.e., the VA examination opinions and specialist opinion) complied with the September 2006, March 2010, June 2011, and November 2012 Board remand directives and adequately considered pertinent evidence of record, to include private operative reports from a March 2002 hysterectomy. See Stegall v West, 11 Vet. App. at 270 (holding that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue has been met. 38 C.F.R. § 3.159(c)(4). VA has made all reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes STRs, VA examination reports, independent medical specialist's opinion, pre-service and post-service treatment records, and the Veteran's lay statements. The Veteran and her representative have not identified any outstanding evidence that needs to be obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Service Connection for a Hysterectomy The Veteran is seeking service connection for a hysterectomy, which she underwent in March 2002. She claims that the symptoms she experienced during service ultimately resulted in her hysterectomy. The preponderance of the more informed medical evidence indicates that her hysterectomy is not related to any in-service incident or treatment and the claim will be denied. Service treatment records (STRs) reflect that the Veteran complained of pelvic discomfort, beginning approximately eight months after she began service. A December 1982 STR noted a normal pelvic examination and pap smear. While a March 1983 STR noted complaints of abdominal cramps, her pelvic examination was normal. A February 1984 STR noted no sexual problems, stress urinary incontinence, discharge, abnormal bleeding, pain, and or pelvic infections/VD. However, a February 1984 STR noted that the Veteran had steady vaginal bleeding since recent delivery of her child. It was noted that her history suggested retained placental fragments. An April 1985 STR noted that the Veteran wanted her intrauterine device removed because of bleeding and cramping. An April 1986 physical noted that the Veteran had a history of irregular menses. The Veteran was gravadia 1, para 1 with a history of iron deficiency. A March 1988 pap smear was normal. A January 1988 laboratory report reflected a positive culture for herpes simplex virus. A June 1988 STR noted mild dysplasia after a cervical biopsy. An August 1988 STR noted bleeding and painful intercourse. An August 1988 Report of Medical Examination noted abnormal pelvic examination. The corresponding Report of Medical History noted numerous urinary tract infections (URI) that resolved with antibiotics and cervical displacement that was treated surgically. A November 1988 STR noted mild cramping followed by a miscarriage. A December 1988 STR noted a persistent ovarian cyst and a probable complete spontaneous early abortion. An August 1988 Report of Medical Examination reflected abnormal pelvic examination with a class III pap. A January 1989 STR noted that the Veteran had a spontaneous abortion and that her menses had been irregular since that time. A June 1989 STR noted a provisional diagnosis of secondary infertility with a normal hysterogram. Post-service records reflect that the Veteran underwent a diagnostic laparoscopy in 1995, which was documented as being normal with no evidence of endometriosis. A February 2002 pelvic ultra sound noted "enlargement of the right ovary with a central hypoechoic area suggesting a complex cyst." A March 2002 note from Sarasota Memorial Hospital indicated that she had a normal pap smear one year earlier. However, a cervical biopsy the same year noted benign endocervical mucosa with no dysplasia or malignancy identified. The Veteran underwent a laparoscopic hysterectomy in March 2002. The postoperative diagnosis was right adnexa mass-probably endometrioma, pelvic endometriosis, dysfunctional uterine bleeding, dyspareunia, abnormal cervical cytology, and probably adenomyosis. The pathology report reflected mild chronic cervicitis with focal koilocytosis and endocervical squamous metaplasia with no evidence of dysplasia, benign secretory phase endometrium, adenomatoid tumor, 1.8 cm (benign), and benign functional cysts. The March 2004 VA examiner indicated that the Veteran had undergone a laparoscopic examination for gynecological symptomatology in 1995. In August 2009, a VA examiner questioned the diagnosis of endometriosis that resulted in the Veteran's hysterectomy in March 2002. He stated that there were nonspecific symptoms that could have been endometriosis in service, but that were not specific for endometriosis. In other words, there was some debate over whether the hysterectomy was performed due to a diagnosis of endometriosis as opposed to some other gynecological condition. In July 2011, a VA examiner concluded that there can be no definitive nexus or correlation with her active duty service given the documentation of a normal hysterogram in 1989 followed by a normal diagnostic laparoscopy (with no evidence of endometriosis) in 1995 (again, six years after separating from service), and then a laparoscopic hysterectomy seven years later in 2002. A May 2013 written opinion from a professor of obstetrics and gynecology noted that the Veteran had multiple medical visits for gynecological care during service. In reviewing the record, the specialist observed that most of the Veteran's medical care was routine, including pap smears, postpartum care, and contraception. There was documentation of several problem oriented visits (i.e., constipation, irritable bowel syndrome, Tylenol overdose, irregular menses, irregular bleeding and pain with intercourse). The specialist observed that in a March 2004 note (i.e., dated approximately five years after military discharge, a physician recorded the Veteran's report that most of her gynecology visits during military service were for irregular bleeding. The specialist concluded that this statement was not clearly substantiated in the military medical records. She noted that in 1988, following a spontaneous pregnancy loss, the Veteran complained of right lower quadrant pain, and her pelvic examination revealed right adnexal enlargement consistent with an ovarian cyst. She was counseled regarding the use of oral contraceptives, but declined. The specialist observed that the cyst apparently resolved spontaneously; the Veteran had her first child in 1984 and that she had 18 months of infertility. She noted that there was no documentation regarding that evaluation, but that the Veteran have a hysterogram, which was normal. She noted that the Veteran conceived spontaneously in 1990. She was diagnosed and treated for cervical dysplasia and genital herpes. In discussing her treatment history, she further stated that in 1995, six years after leaving the military, the Veteran underwent an ultrasound for evaluation of right adnexal pain. In July 1995, an ultrasound revealed a mixed echogenic mass in the right adnexa with a small amount of fluid in the cul-de-sac. The specialist noted that this was read as a possible pelvic inflammatory disease, ectopic pregnancy, endometriosis, and/or occult neoplastic disease. The specialist stated that this may also have represented a hemorrhagic cyst of the ovary, which was not an uncommon occurrence in reproductive age women. The specialist observed that a CT scan confirmed these findings along with a diagnostic laparoscopy, which showed that the cyst had resolved and there were no other abnormal findings. The specialist stated that endometriosis was a complex disease with nonspecific symptoms, and that pelvic pain was the most common symptom associated with endometriosis. She further stated that approximately 75 percent of all symptomatic patients have pelvic pain and/or dysmenorrheal. There were many other symptoms of endometriosis, including: dyspareunia, subfertility, and abnormal uterine bleeding (symptoms the Veteran did have). However, she noted that these symptoms were present in many gynecologic disorders. The specialist stated that the optimal way to diagnose endometriosis was by direct visualization, typically at the time of diagnostic laparoscopy. She mentioned that endometriosis lesions could have a variety of shapes and colors including: clear, red, brown, blue, yellow, white, or mixed. Lesions may be microscopic, macroscopic, or appear as peritoneal windows secondary to scarring. The accuracy of a laparoscopic diagnosis (without tissue confirmation) depends in part on the experience of the surgeon. She observed that if endometriotic-appearing lesions could be biopsied, histology could confirm its presence as visual inspection alone could be in error. However, a negative laparoscopy (as noted in 1995) was highly reliable for excluding the diagnosis of endometriosis. The specialist noted that in 2002, the Veteran was evaluated for an abnormal pap test and that no cervical dysplasia was found. However, she complained of irregular bleeding uncontrolled with medical therapy and dyspareunia. By that time, she had a history of chronic right lower quadrant pain. An enlarged right ovary was noted on examination and confirmed on ultrasound. The ultrasound revealed a complex cyst in the right ovary measuring 3.7 x 2.7 x 4.0 cm. There was a hyperechoic area in the center. She was admitted for laparoscopy with the provision that if endometriosis was present definitive surgery would be performed. The surgeons noted the presence of 50 to 100 cc of blood in the pelvis likely related to a hemorrhagic corpus luteal cyst. In addition, there was "evidence of" endometriosis on the uterus, left ovary, and right ovary. There was scarring in the cult-de-sac thought to be consistent with endometriosis. With the visual appearance of endometriosis, the operating surgeon presumed its presence and performed a laparoscopic vaginal hysterectomy and bilateral salpingo-oophorectomy. The specialist stated that the final pathology, however, did not support their visual findings because no endometriosis was found on final pathology. The specialist noted that the absence of endometriosis on the final pathology report excludes the diagnosis of endometriosis. The specialist further stated that the preoperative diagnosis noted on the operative record includes the following: right andexal mas, probably endometrioma, pelvic endometriosis, dysfunctional uterine bleeding, dyspareunia, and abnormal cervical cytology. Although the operating surgeon noted visual findings consistent with endometriosis, the final pathology does not support that. The presence of hemoperitoneum and the pathologic diagnosis of a hemorrhagic corpus luteum would suggest a diagnosis of a ruptured cyst that bled into the pelvis resulting in operative findings similar to endometriosis. The specialist concluded that endometriosis was not an indication for the Veteran's hysterectomy. The absence of laparoscopic findings in 1995, six years after her discharge from the military, and the absence of endometriosis on the final pathology 13 years after her military discharge preclude it as service connected and that there was insufficient evidence in the medical record to support any preoperative diagnoses as service-connected. The Board affords the May 2013 specialist's opinion the highest probative weight in showing that the March 2002 post-service hysterectomy is not related to service. Her opinion was based on a full review of the evidence of record, to include consideration of the Veteran's lay statements and examinations provided during the course of the appeal, and a review of in-service and post-service treatment records. Her opinion was thorough in detail with sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data based on the evidence of record and his own expertise. Absent more probative medical evidence of a disability during the Veteran's period of active service, continuity of symptomatology after such period of active service, a current diagnosis of the disorder and a nexus between such currently diagnosed disorder and service, service connection will be denied. The nexus element is not met in light of the absence of laparoscopic findings of endometriosis in 1995, six years after her discharge from the military, and the absence of endometriosis on the final pathology 13 years after her military discharge. While the Veteran is competent to describe diagnoses rendered in service and to describe her diagnoses and treatment in service and she is credible in those reports. In this case, the Veteran's reported symptoms, diagnoses, and treatment were considered by VA examiners and an independent medical specialist in rendering their medical opinions. The Veteran's has attempted to establish a nexus between a post-service hysterectomy and diagnoses and treatment in service through her own lay assertions; however, lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011). The specific issue in this case, the pathology leading up to a post-service hysterectomy, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In light of the competent, credible, and probative evidence of record on the issue of causation provided by VA, but mainly the May 2013 opinion rendered by a gynecological specialist, the Board finds that the Veteran's own lay assertions as to causation are of little probative value. For these reasons, the Board finds that the weight of the evidence does not establish a nexus between a post-service hysterectomy and service. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a hysterectomy, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 . Special Monthly Compensation Special monthly compensation is payable at a specified rate if the Veteran, as a result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. 38 U.S.C.A. § 1114(k), 38 C.F.R. §3.350(a). Loss of a creative organ will be shown by acquired absence of one or both testicles (other than undescended testicles) or ovaries or other creative organ. Id. When loss or loss of use of a creative organ resulted from wounds or other trauma sustained in service, or resulted from operations in service for the relief of other conditions, the creative organ becoming incidentally involved, the benefit may be granted. 38 C.F.R. § 3.350(a)(1)(i-ii) (2013). The Veteran is not entitled to special monthly compensation based on the loss of use of a creative organ. The Board notes initially that it already has found that service connection is not warranted for residuals of a hysterectomy. The Board acknowledges that both of the Veteran's ovaries were removed surgically in March 2002. As discussed above, there is no indication in the competent evidence of record that this elective surgery was required as a result of active service or any incident of such service. Thus, the Board finds that the criteria for special monthly compensation based on the loss of use of a creative organ are not met. ORDER Service connection for a hysterectomy is denied. SMC for loss of use of a creative organ is denied. ___________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs