Citation Nr: 1405723 Decision Date: 02/07/14 Archive Date: 02/18/14 DOCKET NO. 10-19 914 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for borderline umbilical hernia, secondary to service-connected status post Cesarean section (C-section) with residual scar formation. 2. Entitlement to service connection for bladder infections, secondary to service-connected status post Cesarean section with residual scar formation. 3. Entitlement to service connection for stomach bruises, secondary to service-connected status post Cesarean section with residual scar formation. 4. Entitlement to service connection for sagging skin, secondary to service-connected status post Cesarean section with residual scar formation. 5. Entitlement to service connection for constipation, secondary to service-connected status post Cesarean section with residual scar formation. 6. Entitlement to service connection for back pain, secondary to service-connected status post Cesarean section with residual scar formation. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from October 1998 to October 2002. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio. The Veteran testified at a hearing before the undersigned Veterans Law at the RO in March 2011. A transcript of the hearing is associated with the claims file. In January 2012, the Board remanded the claims for further development. In two decisions in March 2013, the RO granted service connection for fibroids with continual bleeding and cramps and for striae gravidarum (stretch marks) on the anterior trunk and bilateral lower extremities. Therefore, these claims are no longer on appeal. The Virtual VA paperless claims processing system contains additional VA outpatient treatment records that were considered by the Agency of Original Jurisdiction in the most recent March 2013 supplemental statement of the case. The system also contains a November 2013 brief by the representative that has been considered. FINDINGS OF FACT 1. While the Veteran reported the existence of a borderline umbilical hernia as a consequence of a C-section procedure, there are no competent and credible medical observations and diagnoses of an umbilical hernia. 2. There is no competent and credible evidence of a kidney or bladder infection during the period covered by this appeal; the Veteran's infrequent urinary tract and vaginal infections, noted on two occasions three years apart during the period of the appeal, are not chronic and are not residuals of a C-section in service. 3. The Veteran's abdominal bruising noted several months after a C-section resolved with the use of protective garments and was not present at any time during the period covered by this appeal. 4. The Veteran's sagging abdominal skin manifested in service as a residual of a prolonged pregnancy with substantial weight gain and continued after service until corrected during the period covered by this appeal. 5. The Veteran's chronic constipation first manifested in service and continued after service to the present. 6. There is no competent and credible medical evidence of a separate chronic back disorder; clinicians associated symptoms of back pain with service-connected uterine fibroids or non-service-connected infrequent urinary tract and vaginal infections CONCLUSIONS OF LAW 1. The criteria for service connection for a borderline umbilical hernia are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2013). 2. The criteria for service connection for a bladder infection are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309, 3.310 (2013). 3. The criteria for service connection for abdominal bruising are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309, 3.310 (2013). 4. The criteria for service connection for sagging skin are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309, 3.310 (2013). 5. The criteria for service connection for constipation are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309, 3.310 (2013). 6. The criteria for service connection for a back disorder are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Where complete notice is not timely accomplished, an 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); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In February and August 2006, the RO provided notices prior to the initial decision that did not explicitly meet all the requirements. The notices explained the Veteran's and VA's respective responsibilities to obtain relevant evidence and provided the criteria for substantiating a claim for service connection on secondary basis as claimed but did not provide the five criteria for service connection on a direct basis. Although adjudicative documents may not substitute for adequate and timely notice, the RO did provide the criteria for direct and secondary service connection in an April 2010 statement of the case. Moreover, the Board concludes that the notice error was not prejudicial because the Veteran provided many lay statements and oral testimony contending that the disorders on appeal arose directly from a Cesarean section procedure performed in service. Therefore, the Board finds that the Veteran had actual knowledge of the criteria for both direct and secondary service connection and that further notices are not necessary to proceed with adjudication of the appeal. Regarding the claim for service connection for skin sagging, the Board is granting in full the benefit sought on appeal. As the claim is substantiated, and there is no need for further notice and assistance. Wensch v. Principi, 15 Vet App 362, 367-68 (2001). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment, post-service VA treatment, and identified private treatment records have been obtained and associated with the claims file. In an April 2009 written statement, the Veteran contended that records of care at the Walter Reed Army Medical Center and the National Naval Medical Center were not in the file or considered. Records of care at these centers are in the file and have been considered. The duty to assist also includes providing a medical examination or obtaining a medical opinion when it is necessary to make a decision on a claim. The Veteran was provided VA examinations for the claimed disorders in February and March 2012. The results have been included in the claims file. The Board finds that the examinations and opinions are adequate because they involved a review and summary of the history the examiner, consideration of reports by the Veteran, and a thorough clinical examination in compliance with regulations and protocols. A Veterans Law Judge who chairs a hearing must fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. 38 C.F.R. § 3.103(c)(2) (2013); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the March 2011 Board hearing, the VLJ advised the Veteran of the basis for the prior determinations and the elements of the claims that were lacking. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim including records of private treatment reported by the Veteran. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor has identified any prejudice in the conduct of the RO/Board hearing. The Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate his claim for benefits and his representative submitted additional evidence to support the claims. Consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2). As VA has satisfied its duties to notify and assist the Veteran, the Board will proceed to review and decide the claim based on the evidence that is of record. The Veteran served as a U.S. Marine Corps musician. She underwent a Cesarean section delivery of a healthy boy in April 2001 required due to arrested dilation during labor. In April 2003, the RO granted service connection for status post Cesarean section (hereafter C-section) with residual scar and striae. The Veteran contended in a March 2006 claim and in testimony at the March 2011 hearing that the claimed disorders on appeal are arose in service and are residuals of the complex pregnancy and C-section delivery. Service connection is granted if it is shown the Veteran suffers from disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110; 38 C.F.R. §§ 3.303(a), 3.306. To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing she has at some point since the filing of her claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A claimant satisfies the current disability threshold when a disability exists at the time her claim was filed, even if the disability resolves prior to VA's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Service treatment records are silent for any symptoms, diagnoses, or treatment for the claimed disorders prior to April 2001when the Veteran was admitted to the National Naval Medical Center for delivery of a full term (40 plus 5 weeks) baby boy. Detailed admissions records noted no previous symptoms of the disorders on appeal. Because of the length of the pregnancy, induction was indicated. During the process, the Veteran failed to progress in dilation. Attending physicians advised and the Veteran consented to undergo a low transverse Cesarean section (C-section) delivery. In a statement in July 2004 and in testimony during the March 2011 hearing, the Veteran reported that she was in extreme discomfort including back pain during the labor, that her ex-husband told her that surgeons removed kidneys and bladder during the C-section looking for infection or other causes for the back pain, and that she underwent an unauthorized dilatation and curettage (D & C) during the procedure. The Veteran also contended that the incision was not straight and not closed properly. However, the operation report and discharge summary do not confirm these reports which are silent for any organ removals, D & C procedures, or improper incisions. The attending physicians noted a normal uterus, tubes and ovaries and that the delivery and post-partum course was uncomplicated. In post-partum follow up treatment in July 2001, the Veteran reported burning on urination and constipation. A clinician diagnosed a vaginal yeast infection and mild constipation and prescribed medication and fiber supplements. In August 2001, the Veteran reported pain and bruising at the site of the incision after returning to her musician duties that including frequent play of her musical instrument. A clinician noted mild tenderness along the incision but a normal healing process. The Veteran was authorized certain light duties including a relaxation from the use of shirt stays. In a May 2002 discharge physical examination, the Veteran noted the occurrence of the urinary symptoms in 2001 as a bladder infection. The Veteran did not report and the examiner did not note any hernias, scar or skin discomfort, constipation or other gastrointestinal problems, or chronic back pain. Borderline Umbilical Hernia; Stomach Bruises; Sagging Skin In a January 2003 VA examination, a physician noted a well healed 13 centimeter scar and striae but made no observations of an umbilical hernia, bruising, or excess skin folds. VA primary care records from 2003 through November 2005 are also silent for symptoms or observations of these abnormalities. In November 2005, a VA physician noted the Veteran's report of excess abdominal tissue associated with pain and skin irritation. The Veteran reported, and service treatment records confirmed, that she gained 50 pounds during pregnancy and that the post-partum she returned to normal weight with loose abdominal skin. The physician observed a small pannus without intertrigo or skin loss and mild diastasis rectii with no hernia and no mention of an umbilical hernia. The physician recommended abdominoplasty. In February 2006, a VA primary care physician noted the Veteran's report that she planned to have an umbilical hernia repair and a tubal ligation but made no clinical observations. The RO received the Veteran's claims for service connection for skin sags, stomach bruises, and a small umbilical hernia in March 2006. In May 2006, the Veteran underwent a panniculectomy at a VA medical center. In the operation report, the surgeon noted that the procedure included the umbilicus area but noted that there were no hernias or rectus diastases that required repairing. In the March 2011 hearing the Veteran testified that a private physician examined her after service on a single occasion and told her that the closure from the C-section was not done properly. The Veteran reported that the physician was no longer practicing and that records were not available. The Veteran reported that since the C-section, she had to wear a girdle to prevent bruising on her abdomen. She cited an August 2001 service treatment record entry of the bruising and authorization to relax the use of shirt stays. She further reported that all the disorders or deficits were resolved by the May 2006 panniculectomy. In February 2012, a VA internal medicine physician noted a review of the claims file and the Veteran's report that she noticed an umbilical hernia immediately after the C-section but that the hernia was repaired during the panniculectomy. The Veteran also reported that she gained 50 pounds during the pregnancy and experienced excess skin, bruising, and striae for the past five years until all problems were resolved by the May 2006 panniculectomy. On examination, the physician observed only the striae. As a preliminary matter, the Board finds that the Veteran is competent and credible to report on her observed symptoms and physical deformities except for those statements that are inconsistent with the records. The presence of excess abdominal skin from the time of the C-section until May 2006 and the associated discomfort and use of a girdle is credible because it is consistent with the record of a 50 pound gain during pregnancy and a return to near normal weight. The hearsay report that she underwent an unauthorized D&C or had organs removed during the C-section is not credible as nothing of this nature was noted in the medical records. Recurrent bruising of the excess skin and the existence of an umbilical hernia is also not credible as a hernia was never observed by clinicians when there were many clinical opportunities to do so such as in any service records after August 2001 and on the May 2002 discharge examination. Recurrent bruising and an umbilical hernia were not noted in any VA primary care encounters, the 2003 general medical examination, the November 2005 consultation, or the May 2006 surgical records. There is also no medical evidence that the C-section incision was performed improperly. Resolving all doubt in favor of the Veteran, the Board finds that service connection is warranted for sagging skin on a direct basis as the deformity occurred during service and continued after service. It is not clear from the records whether this deformity should be considered a disability arising from an injury or disease since it manifested from weight gain in the course of a prolonged but normal pregnancy. Secondary service connection is not appropriate because the excess skin was not a consequence of the C-section but rather the weight gain and loss. Nevertheless, for consistency, the Veteran has been granted service connection for striae which are also a consequence of the weight gain and loss. Even though the sagging skin was corrected in May 2006 and is no longer a current disability, the deformity was present at the time of the Veteran's claim received in February 2006. The current disability element is satisfied consistent with the holding in McClain. The Board finds that service connection for stomach bruising and an umbilical hernia is not warranted on a direct or secondary basis. There is no competent medical evidence of an umbilical hernia and the Veteran's reports of chronic bruising are not credible. On many occasions in service after the C-section and after service, the Veteran was examined and no hernias were observed, even during the panniculectomy. Although a clinician in service in August 2001 observed abdominal bruising and authorized a military uniform relaxation, there are no subsequent medical observations, treatment, or activity or clothing recommendations and no observations of bruising during many clinical examinations. That the Veteran chose to use a girdle to avoid discomfort and bruising and to improve appearance is credible and appears to have been a successful strategy to avoid recurrent bruising. Therefore as there is no competent and credible evidence of an umbilical hernia at any time or recurrent stomach bruising after August 2001, service connection is not warranted. Bladder Infections, Constipation, and Back Disorder Service treatment records showed that the Veteran was treated for a kidney stone in August 2000. There were no recurrences during service. As noted above, the Veteran reported burning on urination and constipation in post-partum follow up treatment in July 2001. A clinician diagnosed a vaginal yeast infection and mild constipation and prescribed medication and fiber supplements. In a May 2002 discharge physical examination, the Veteran reported the occurrence of the urinary symptoms in 2001 as a bladder infection. The Veteran did not report and the examiner did not note any chronic constipation or other gastrointestinal problems or chronic back pain. The Veteran reported that she experienced frequent or painful urination, but the examiner noted only a history of a kidney stone and a bladder infection in 2001. In a January 2003 VA general medical examination, the Veteran did not report and the examiner did not note any genitourinary, gastrointestinal, or back or spinal symptoms or chronic disorders. However, later the same month, a private physician noted the Veteran's report of urinary frequency and urgency. The physician noted that the Veteran had not had an infection for more than one year, but that laboratory testing showed a current acute lower urinary tract infection. There were no reports of back pain. VA primary care records in April 2003 showed that the Veteran was prescribed a stool softener, but this medication was not carried forward in subsequent encounters nor were there any clinical diagnoses of chronic constipation or other lower gastrointestinal disorders. In April 2004, the Veteran sought private emergency room care for abdominal pain. A computed tomography scan ruled out a kidney stone but a urinalysis showed an infection, diagnosed as cystitis. The physician prescribed a course of antibiotic medication. Two months later in June 2004, a VA primary care physician prescribed another course of antibiotics for possible mild cystitis. In November 2005, a VA primary care physician noted the Veteran's report of back pain and menorrhagia that she attributed to uterine fibroids. The Veteran also reported stress incontinence and recurrent urinary tract infections although the last episode was in July 2004. Following an examination and workup, the physician noted that the back pain was likely musculoskeletal because of the small size of the fibroids. The Veteran underwent a total hysterectomy in November 2006. VA primary care records show that the Veteran had urinary tract or vaginal infections in August 2007 and April 2010. The Veteran was also treated for low back pain that she noticed three days earlier after twisting her back while driving. The attending physician diagnosed musculoskeletal back strain/sprain. A November 2011 X-ray of the lumbar spine was obtained to investigate the Veteran's report of left leg pain without back pain. The X-ray was normal. During the March 2011 Board hearing, the Veteran testified that she had never sustained a back injury and had never been diagnosed with a back disorder but experienced back pain during her prolonged labor in service and concurrent with kidney and bladder infections after service. The Veteran also reported experiencing chronic constipation with reduced frequency and severity following the panniculectomy and hysterectomy. In February 2012, a VA internal medicine physician noted a review of the claims file and examined the Veteran to address the genitourinary, gastrointestinal, and back symptoms. The physician noted that the Veteran did not currently have a urinary tract infection and that after service starting in January 2003, the Veteran experienced only four infections. The physician concluded that the infections were not frequent or chronic. The record show only two infections in 2007 and 2010 after the receipt of her claim in March 2006. Further, the physician noted from his review that the infections were not residuals of the pregnancy or the C-section. The physician noted that the Veteran currently experienced chronic constipation, manifested by one bowel movement per week with bloating and pain and the continuous use of medication. Although not a residual of the pregnancy or C-section, the physician noted from his review that the onset of the current disorder did occur on active duty and continued to the present. The physician noted that the Veteran did not have current back symptoms or a diagnosed disorder. The physician also noted from his review that the Veteran never has had a back disorder and cited a November 2011 X-ray that was normal. As a preliminary matter, the Board finds that the Veteran is competent and credible to report on her observed symptoms and physical deformities except for those statements that are inconsistent with the records. The Veteran's reports of back pain associated with labor and concurrent with urinary tract or vaginal infections are credible. However, her lay evidence that that the recurrences of infection and back pain are frequent and are residuals of a C-section or chronic and not acute episodes is not competent because that determination requires medical training and review of the entire medical record. The Veteran's report of constipation and the need for preventive medication is credible because it is consistent with the primary care records and was accepted by her clinicians and by the February 2010 VA examiner. Resolving all doubt in favor of the Veteran, the Board finds that service connection for constipation is warranted on a direct basis but not on a secondary basis as a residual of the C-section procedure. The Veteran was treated for constipation several months after the birth procedure. This disorder was not noted or reported on the May 2002 discharge examination or January 2003 VA general medical examination. However, the Veteran credibly reported the on-going use of over-the-counter medication, and VA records on at least one occasion showed the use of a stool softener. Although a clinician in service in July 2001 implied that the constipation at that time may have been a post-partum symptom, none of the VA primary care clinicians who only rarely noted the Veteran's reports of chronic constipation attributed the symptom to the pregnancy or delivery. Notwithstanding the dearth of post-service medical evidence, the Board places greatest probative weight on the opinion of the VA physician in February 2012 who reviewed the record and concluded that the constipation that first manifested in service continued after service to the present. Therefore, service connection is warranted. The Board finds that service connection for recurrent urinary tract, vaginal, and kidney infections is not warranted on a direct or secondary basis. After the 2000 episode of a kidney stone, there is no medical evidence of symptoms, diagnoses, or treatment for any form of kidney disease or infections of the bladder. The Veteran experienced a vaginal yeast infection in July 2001 that was likely associated with the C-section because of the proximity to the birth procedure and context of the treatment note. Subsequent infections, diagnosed as cystitis or urinary tract infections, were infrequent, treated successfully with medication, and never diagnosed as a chronic disorder or a long term residual of the birth procedure. The Board places greatest probative weight on the opinion of the VA physician in February 2012 who reviewed the entire record, considered the Veteran's contentions, but determined that the infections were not chronic nor a residual of the C-section. The Board finds that service connection for a chronic back disorder is not warranted on either a direct or secondary basis because the Veteran does not have a chronic back muscle or lumbar spine disorder. No muscular or spinal disorder has ever been diagnosed including during the period covered by his appeal. The severe back pain experienced during labor resolved after the birth and was not noted again in service or within one year of service. The Board acknowledges the Veteran's credible report of no back injury and experiencing back discomfort concurrently with infrequent vaginal or urinary tract infections. The Veteran also reported back pain noted by clinicians as a symptom of uterine fibroids for which she has been granted service connection and which resolved after the November 2006 hysterectomy. Therefore service connection for back pain is not warranted. As the preponderance of the evidence is against these claims, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for borderline umbilical hernia is denied. Service connection for bladder infections is denied. Service connection for stomach bruises is denied. Service connection for sagging skin is granted. Service connection for constipation is granted. Service connection for back pain is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs