Citation Nr: 1400034 Decision Date: 01/02/14 Archive Date: 01/16/14 DOCKET NO. 10-16 996 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for cervical dysplasia. 2. Entitlement to service connection for the human papilloma virus (HPV). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from January 2004 to May 2009. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2009 rating decision as part of the Benefits Delivery at Discharge (BDD) program. In the June 2009 decision, the RO denied the Veteran's claims for service connection for dysplasia and human papilloma. In July 2009, the Veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in March 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2010. The Board notes that the purpose of the BDD program is to help ensure a smooth transition from military to civilian status by allowing service members to file pre-discharge claims for disability compensation with VA. In order to facilitate the quick processing of claims under the BDD program, the Virtual VA paperless claims processing system is utilized. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits. In her substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO. The Veteran withdrew her request for a hearing in September 2010. See 38 C.F.R. § 20.704(d) (2013). Subsequent to the March 2010 supplemental statement of the case (SSOC), additional evidence was associated with the Veteran's claims file. The Veteran's representative waived of initial RO consideration of this evidence in its September 2013 Informal Hearing Presentation. See 38 C.F.R. §§ 20.800, 20.1304 (2013). The Board's decision on the claim for service connection for cervical dysplasia is set forth below. The remaining claim on appeal is addressed in the remand following the order; this matter is being remanded to the RO. VA will notify the Veteran when further action, on her part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. While the record reflects that the Veteran has been diagnosed with cervical dysplasia during the course of the appeal, such is actually only a laboratory test result and not a disability for VA purposes, and there is no evidence or allegation of any underlying disability for which service connection may be granted. CONCLUSION OF LAW The criteria for service connection for cervical dysplasia are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, a December 2008 pre-rating letter provided notice to the Veteran regarding the information and evidence needed to substantiate a claim for service connection for cervical dysplasia. This letter also informed the Veteran of what information and evidence must be submitted by her, and what information and evidence would be obtained by VA. The June 2009 rating decision reflects the RO's initial adjudication of the claim for service connection for after the issuance of the December 2008 letter. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of the service treatment records and the report of the VA examination, as well as the Veteran's VA outpatient treatment records. Also of record and considered in connection with the appeals are various written statements provided by the Veteran and her representative. The Board finds that no additional RO action to further develop the record in connection with claim decided herein, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran was notified and made aware of the evidence needed to substantiate these claims, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection The Veteran contends that service connection for cervical dysplasia is warranted as she was diagnosed with this condition during service and that this condition creates a higher risk for the later development of cervical cancer. In its December 2013 Informal Hearing Presentation, the Veteran's representative argued that the Veteran's cervical dysplasia was not a laboratory test result but rather constituted a disability. However, the representative did not cite to any regulatory or statutory provisions or case law in support of this contention. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1. See also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that a symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Pertinent to gynecological disability, a finding of cervical dysplasia, alone, does not constitute a service-connectable disability--although such a finding may be etiologically related to a later diagnosis of cervical cancer. See 60 Fed. Reg. 19,851 (April 21, 1995). Cervical dysplasia is neither a disease nor an injury, but rather is a cellular abnormality of the cervix revealed by a PAP smear and may resolve with residuals or it may represent a premalignant condition, which is a forerunner of carcinoma or carcinoma in situ of the cervix. Id. The Veteran's service treatment records include the report of a December 2012 PAP smear showing results of low grade squamous intraepithelial lesions and encompassing HPV and mild dysplasia. A January 2009 VA examination report indicates that the Veteran's last PAP smear in December 2008 was normal and contained a diagnosis of cervical dysplasia and HPV changes, status-post colposcopy. Post-service treatment records document that the Veteran underwent multiple PAP smears, including in April 2011, which were found to be negative while a March 2010 PAP smear revealed "atypical cells." A May 2012 VA treatment note indicated that the Veteran had an abnormal colposcopy with cell abnormalities and abnormal PAP smears (ASCUS) in 2010 but that she has since had three normal PAP smears. A May 2012 cervical biopsy revealed transformation zone mucosa with cervicitis and focal squamous aypia, which resulted in the diagnosis and treatment of cervicitis. With regard to the claimed cervical dysplasia, VA has found that such is actually a laboratory result and is not, in and of itself, a disability for compensation purposes. See 60 Fed. Reg. 19,851 (April 21, 1995). Thus, while the record reflects a diagnosis of cervical dysplasia, the Board notes that such has been established by VA to be a laboratory result and not an actual disability for which VA compensation benefits are payable-despite the representative's arguments to the contrary. However, well meaning those assertions, the Veteran's representative-a layperson not shown to have special knowledge, training, and experience to opine on the complex matters of diagnosis and medical etiology underlying the claim on appeal-simply cannot support the claim on the basis of his own lay assertions. See Kahana v. Shinseki, 24 Vet. App. 428, 433, 438 (2011). See also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). Significantly, no scientific or medical evidence has been presented or even identified to support a finding that cervical dysplasia is actually a disease or injury for compensation purposes, or to otherwise support the claim on appeal. The Board acknowledges that laboratory results may be evidence of an underlying disability in some instances. In this case, however, the Veteran has specifically claimed service connection for cervical dysplasia, and neither the Veteran nor her representative has asserted or even suggested that the Veteran has carcinoma or carcinoma in situ of the cervix. See 60 Fed. Reg. 19,851 (April 21, 1995). Significantly, moreover, the record does not otherwise medically suggest that the Veteran has an underlying disability related to cervical dysplasia, such as carcinoma or carcinoma in situ of the cervix, for which service connection can be granted. As the laboratory finding of cervical dysplasia does not constitute a disability for VA compensation purposes, and no underlying disability has been medically identified, the Veteran does not have a currently diagnosed disability for which service connection can be granted. As such, there can be no award of service connection on any basis. Hence, discussion of the remaining criteria for establishing service connection is unnecessary. For all the foregoing reasons, the Board finds that the claim for service connection cervical dysplasia must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for cervical dysplasia is denied. REMAND The Board's review of the claims file reveals that further RO action on the remaining claim for service connection for HPV is warranted. The Veteran contends that service connection for HPV is warranted as she was diagnosed with the condition during service. Service treatment records document findings of high-risk HPV in December 2006. A January 2009 VA examination report contained a diagnosis of HPV changes, status-post colposcopy. Post-service treatment records document that a HPV test was conducted in May 2011 and was negative. In May 2012, the Veteran was diagnosed with cervicitis following a cervical biopsy that revealed transformation zone mucosa with cervicitis and focal squamous aypia. The Veteran's representative has argued that the Veteran's cervicitis was the result of her previously diagnosed HPV. Under the circumstances noted above, the Board finds that further examination and opinion is needed to resolve the service connection claim remaining on appeal. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Hence, the Veteran should undergo a VA examination, by an appropriate physician, at a VA medical facility. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of the claim for service connection (as the original claim will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to her by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo a VA examination, to ensure that the record is complete, and that all due process requirements are met, the RO should undertake appropriate action to ensure that all outstanding, pertinent records are associated with the claims file. As for VA records, the claims file reflects that the Veteran has been receiving treatment for her disability from the VA Puget Sound Health Care System in Seattle and that records from that facility dated through September 2013 are associated with the file; however, more recent records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain all records of pertinent treatment from the Puget Sound VA Health Care System (since September 2013) for the Veteran, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with regard to requests for records from Federal facilities. The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim remaining on appeal. The RO's letter to the Veteran should explain that she has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1); but see also 38 U.S.C.A. § 5103(b)(3) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran furnish, or furnish an updated authorization to enable it to obtain, any private treatment records. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. The RO's adjudication of the claim should include consideration of all additional evidence added to the record since the last adjudication of the claim. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the Puget Sound Health Care System all outstanding, pertinent records of evaluation and/or treatment of the Veteran related to her gynecological conditions, dated since September 2013. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and her representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Also clearly explain to the Veteran that she had a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist her in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, the Veteran should be scheduled to undergo VA examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, and copies of any relevant Virtual VA records must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly identify all current gynecological disorders, to include cervicitis, HPV or any disorder related to HPV. Then, with respect to each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability is medically-related to an in-service injury or disease, to include the in-service diagnosis of HPV. In rendering the requested opinion, the examiner should specifically consider and discuss the service treatment records and post-service treatment records, including the May 2011 laboratory report that was negative for HPV. The examiner should specifically comment on the Veteran's contention that her cervicitis is the result of her in-service diagnosis of HPV. The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to her by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested 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, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim remaining on appeal in light of all pertinent evidence and legal authority. 8. If the benefit sought on appeal remains denied, furnish to the Veteran and her representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs