Citation Nr: 1431925	
Decision Date: 07/16/14    Archive Date: 07/22/14

DOCKET NO.  09-23 988	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for a hysterectomy.

2.  Entitlement to service connection for a right upper extremity neurologic disability, to include as secondary to service-connected right upper extremity lipoma with residual scar.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARINGS ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

John Kitlas, Counsel


INTRODUCTION

The Veteran served on active duty from August 1986 to August 1989. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

The Veteran provided testimony at a hearing before personnel at the RO in January 2008, and before the undersigned Acting Veterans Law Judge (AVLJ) in May 2011.  Transcripts of both hearings are of record.

In September 2011, the Board remanded the appeal for further development to include according the Veteran a new examination regarding her right upper extremity claim.  Such an examination was accomplished in October 2011, and all other development directed by the Board's September 2011 remand appears to have been substantially accomplished.  Accordingly, a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998).  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

However, further development is still required regarding the 38 U.S.C.A. § 1151 claim.  Accordingly, this claim is REMANDED to the Agency of Original Jurisdiction (AOJ).





FINDING OF FACT

The evidence of record establishes that it is at least as likely as not the Veteran has a disability of the right upper extremity, diagnosed as reflex sympathy dystrophy, secondary to her service-connected right upper extremity lipoma.


CONCLUSION OF LAW

The criteria for service connection for reflex sympathy dystrophy of the right upper extremity are met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

In light of the favorable action taken herein, discussion of whether VA has met its duties of notification and assistance is not required, and deciding the appeal at this time is not prejudicial to the Veteran.

Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310).


The Veteran's service treatment records reflect she was treated for a right wrist strain versus tear of the triangular fibrocartilage in October 1987.  In November 1988, she had a positive Phalen test and was diagnosed as having carpel tunnel syndrome.  However, X-rays taken of the right elbow in December 1988 were within normal limits.  Further, the Veteran's upper extremities were clinically evaluated as normal on her April 1989 expiration of term of service examination.  She also indicated on a concurrent Report of Medical History that she had not experienced painful or "trick" shoulder or elbow.  

The Veteran's post-service medical records reflect she was treated for complaints of the right upper extremity on various occasions.  However, the record indicatse the treatment occurred years after service.  The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim.  See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991).  Moreover, the Veteran also indicated she sustained a post-service injury to the right upper extremity.  For example, records dated in August 2006 reflect she was in a motor vehicle accident about two years before, and experienced right upper extremity pain since that time.  

Notwithstnading the Veteran's cotentnions, the reord does not establish that she has the requisite knowledge, skill, experience, training, or education to render a medical opinion.  Consequently, her contentions cannot constitute competent medical evidence.  38 C.F.R. § 3.159(a)(1).  Further, although the February 2009 VA opinion addressed the nature and etiology of her current right upper extremity disability, the Board's September 2011 remand previjusly found this opinion inadequate.  

While the October 2011 VA examiner, who diagnosed the current disability as reflex sympathetic dystrophy, also opined that the disability was not directly related to service, that examiner also found that it was at least as likely as not that the reflex sympathy dystrophy was proximately due to or the result of the Veteran's service-connected right upper extremity lipoma disability.  Although the examiner stated it was also at least as likely as not that the current disability was related to the injury resulting from the post-service motor vehicle accident, the examiner indicated that it could not be stated, without resorting to speculation, that one condition would contribute more than the other to the development of the reflex sympathetic dystrophy.  

Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  In Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court of Appeals for Veterans Claims held that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail;" when the evidence is in relative equipoise, the appellant prevails.  That is the case here.  Resolving all reasonable doubt in favor of the Veteran, service connection is warranted.


ORDER

Service connection for reflex sympathy dystrophy of the right upper extremity is granted.


REMAND

The record reflects the Veteran underwent a partial hysterectomy in June 2007 due to uterine fibrosis with a left ovary resection.  The Veteran has essentially contended, in her statements and hearing testimony, that she received poor/improper medical treatment from VA for her fibroid cysts which ultimately required her to undergo the hysterectomy and experience mental anguish.  The evidence on file does show VA medical treatment for her fibroid cysts prior to the hysterectomy.  However, it is not clear from the evidence of record whether the VA medical treatment actually made the hysterectomy necessary; and, if so, whether there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in providing this medical treatment or an event not reasonably foreseeable.  38 U.S.C.A. § 1151; 38 C.F.R. § 3.361.  Consequently, the Board finds that a competent medical examination and opinion is necessary in order to resolve this matter.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).  

Accordingly, the issue of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for a hysterectomy is REMANDED for the following actiosn:

1.  Obtain the names and addresses of all medical care providers who have treated the Veteran for her hysterectomy residuals since May 2009.  After securing any necessary authorization, obtain those records not on file.

2.  Notify the Veteran that she may submit lay statements from herself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of VA medical treatment she received for fibroid cysts prior to her hysterectomy.  Provide an appropriate amount of time in which the Veteran can submit this lay evidence.

3.  After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to evaluate her claim of compensation under 38 U.S.C.A. § 1151 for hysterectomy.  The claims folder should be made available to the examiner for review before the examination.  Following evaluation of the Veteran, the examiner should state whether the June 2007 hysterectomy resulted from medical treatment she had received through VA for fibroid cysts and/or the lack of proper medical treatment.  

If the examiner determines the hysterectomy was due to VA medical treatment or lack of proper treatment, then he or she should express an opinion as to whether it is at least as likely as not that there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical treatment, or examination; or an event not reasonably foreseeable.  The examiner's opinion should reflect whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider in treating the Veteran's fibroid cysts; or VA furnished the medical treatment without the Veteran's informed consent.

A complete rationale for any opinion expressed must be provided.  An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).  As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge.

4.  After undertaking the development above, readjudicate the Veteran's claim.  If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period of time in which to respond.  Then, return the appeal to the Board.

No action is required by the Veteran until she receives further notice; however, she may present additional evidence or argument while the case is in remand status at the RO.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  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. 2013).



____________________________________________
J. MACIEROWSKI KIRBY
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs