Citation Nr: 1443569 Decision Date: 09/30/14 Archive Date: 10/06/14 DOCKET NO. 11-17 615 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for residuals of gall bladder removal (cholecystectomy). 2. Entitlement to service connection for residuals of a hysterectomy. 3. Entitlement to an initial rating in excess of 10 percent for a post-surgical thoracolumbar spine disability. 4. Entitlement to an initial rating in excess of 10 percent for left leg radiculopathy. 5. Entitlement to an initial (compensable) rating for status post ventral hernia repair. 6. Entitlement to an initial (compensable) rating for status post hemorrhoids. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from March 25, 1986, through July 22, 1986. She has verified active duty for training (ACDUTRA) dates as follows: August 21, 1989, August 23, 1989, August 29, 1989, September 11, 1989, through September 15, 1989, September 18, 1989, September 20, 1989, September 22, 1989, September 25, 1989, September 27, 1989, October 17, 1989, through October 20, 1989, and December 6, 1989, through December 8, 1989. She also had active service from August 1990 to November 2009. This case comes to the Board of Veterans' Appeals on appeal from June 2010 and August 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In February 2013, the Veteran also testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A written transcript of the hearing has been prepared and incorporated into the evidence of record. The following determinations are based on review of the Veteran's claims file in addition to her Virtual VA "eFolder." The issues of entitlement to an initial rating in excess of 10 percent for a post-surgical thoracolumbar spine disability, entitlement to an initial rating in excess of 10 percent for left leg radiculopathy, entitlement to an initial (compensable) rating for status post ventral hernia repair, and entitlement to an initial (compensable) rating for status post hemorrhoids are addressed in the REMAND portion of the decision below. Those claims are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if additional action is required on her part. FINDINGS OF FACT 1. The Veteran does not have residuals of gall bladder removal (cholecystectomy) that were caused or aggravated by an event, injury, or disease incurred during a period of active duty or ACDUTRA. 2. The Veteran does not have residuals of a hysterectomy that were caused or aggravated by an event, injury, or disease incurred during a period of active duty or ACDUTRA. CONCLUSIONS OF LAW 1. Residuals of gall bladder removal (cholecystectomy) were not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, (2013). 2. Residuals of a hysterectomy were not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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), 3.159, 3.326(a) (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013; 38 C.F.R. § 3.159(b) (2013). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by two letters dated in March 2010 which were issued shortly after the Veteran filed a claim for benefits that same month. These VCAA letters informed the Veteran of the evidence and information needed to substantiate a claim for service connection and informed the Veteran of which information and evidence she was to provide to VA and which information and evidence VA would attempt to obtain on her behalf. VA informed the Veteran it had to obtain any records held by any federal agency. The letter also informed the Veteran that on her behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letter told the Veteran that she could obtain private records herself and submit them to VA. The VCAA notice requirements of 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(b) (2013) apply to all five elements of a service connection claim. 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. The United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the 2010 letters explained the type of evidence necessary to establish service connection and the type of evidence necessary to establish a disability rating and effective date for the claims on appeal. Thus, the duty to notify has been satisfied as to the service connection issues on appeal. VA has a duty to assist a veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service treatment records (STRs) and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). In the present case, STRs, private treatment records, VA treatment records, and the Veteran's statements and a transcript of her testimony have been obtained and associated with the claims file. The appellant was afforded the opportunity to testify before a VLJ in February 2013. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) (2013) requires that the decision review officer or VLJ who chairs a hearing 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. Here, during the hearing, the VLJ elicited information concerning the Veteran's duty status. 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 claims. Moreover, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. Indeed, the appellant, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claims for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) (2013). For these reasons, the Board finds that the duties to notify and assist the Veteran have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duties to notify and assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Board finds that no reasonable possibility exists that any other assistance would aid in substantiating the claims decided herein and VA met its duty to assist the Veteran. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303(a) (2013). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). It is the Veteran's primary contention that she incurred the disabilities on appeal as a result of in-service incidents or exposures during her ACDUTRA or her active duty service. Service connection may be granted for disability resulting from disease or injury incurred during ACDUTRA or injuries incurred during inactive duty for training (INACDUTRA). See 38 U.S.C.A. §§ 101(24), 106 (West 2002 & Supp. 2013); 38 C.F.R. § 3.6 (2013). Service connection is not legally merited when the disability results from a disease process (other than acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident) during INACDUTRA. See, e.g., Brooks v. Brown, 5 Vet. App. 484, 487 (1993). Reserve and National Guard service generally means ACDUTRA and INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505 (West 2002 & Supp. 2013); 38 U.S.C.A. § 101(22) (West 2002 & Supp. 2013); 38 C.F.R. § 3.6(c) (2013). Basically, this refers to the two weeks of annual training, sometimes referred to as "summer camp," that each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505; 38 U.S.C.A. § 101(23) (West 2002 & Supp. 2013); 38 C.F.R. § 3.6(d) (2013). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year. These drills are deemed to be part-time training. When a claim for service connection is based only on a period of ACDUTRA, there must be evidence that the claimant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40 (2010). In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service," and the claimant would not qualify as a "veteran" by virtue of the ACDUTRA alone. Id. In the service connection context, for example, this means that the presumption of soundness upon entry into service and the presumptive service connection provisions of 38 C.F.R. § 3.307 (2013), applicable to active duty, would not apply to ACDUTRA or INACDUTRA. 38 U.S.C.A. §§ 1111, 1112, 1137 (West 2002 & Supp. 2013); 38 C.F.R. § 3.307 (2013). Thus, service connection on a presumptive basis is not available where the only service performed is ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 476-78 (1991). By statute, a veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C.A. § 1111 (West 2002 & Supp. 2013). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (2013). As noted, this presumption also does not apply to ACDUTRA and INACDUTRA service, only active duty. The same is true of the presumptions of soundness and aggravation. See Smith v. Shinseki, 24 Vet. App. 40 (2010); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In certain circumstances lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). 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. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Background It is the Veteran's primary assertion that her gall bladder removal (cholecystectomy) and her hysterectomy were performed in 1989 during periods of time when she was on (temporary) active duty with the National Guard. (See, e.g., page 14 of the transcript of testimony at the February 2013 videoconference hearing). Review of the STRs reflects that there is a February 1986 enlistment examination report conducted prior to her initial entry into active service. There was a normal pelvic exam. Moreover, there was no report of a gall bladder problem. No treatment for these conditions is indicated for this short period of active duty service in 1986. As summarized earlier, the Veteran had various ACDUTRA dates in 1989. Also of record are private records dated in 1988 and thereafter which reflect that the gall bladder was noted to be thickened in October of that year. It was removed on February 3, 1989, after her report of experiencing symptoms of upper quadrant pain for several months. Additional private records from this period of time reflect that she had a 4 year history of right upper quadrant pain which had significantly worsened in the past two months. The Veteran has stated (see, e.g., October 2010 statement) that her hysterectomy surgery was performed on November 6, 1989. The dates of either surgery do not correspond to dates of verified ACDUTRA or active duty. Prior to entry into active duty in August 1990, the Veteran underwent examination in May 1990. At that time, it was noted that she had undergone a cholecystectomy and a hysterectomy in 1989. Although the medical history of these procedures is noted on occasion during service, actual inservice treatment for residuals of these procedures is not indicated. VA examination in April 2010 did not reflect current complaints or current residuals of her 1989 cholecystectomy or hysterectomy. Analysis Upon careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for residuals of gall bladder removal (cholecystectomy) and for residuals of a hysterectomy. It is clear from the record that the Veteran has a history of gall bladder removal and a hysterectomy in February and November 1989, respectively. As noted above, the Veteran contends that these disabilities were either proximately caused or aggravated by her active duty military service or ACDUTRA. Based on the evidence of record, the Board concludes that they were not. Although the Veteran was shown to have a history of both procedures in 1989, the evidence of record shows that the procedures were not conducted during periods of ACDUTRA or active duty. Moreover, it was noted prior to entry into service in 1990 that these conditions preexisted entry into that period of active duty. And, no treatment for residuals of these conditions is indicated during her service from 1990 to 2009. There is no competent medical evidence which causally relates these disabilities to service, to include her ACDUTRA. The record reflects that the Veteran was first noted to have these conditions when not on active service or ACDUTRA. Inasmuch as the evidence on file does not tend to show that she has current residuals of a her gall bladder removal or her hysterectomy which may be associated with service, the Board must conclude that no additional development, to include medical examinations or the securing of medical opinions, is reasonable based upon the facts of this case. See 38 U.S.C.A. § 5103A(d)) (West 2002 & Supp. 2013); Hickson v. West, 12 Vet. App. 247, 253 (1999), Pond v. West, 12 Vet. App. 341, 346 (1999). Consequently, the Board finds that, in the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). Thus, the Board concludes that further development and further expending of VA's resources is not warranted. For the reasons stated above, the Board finds that the preponderance of the evidence is against the claims of service connection for residuals of gall bladder removal (cholecystectomy) and residuals of a hysterectomy, and they must be denied. As the preponderance of the evidence is against both of these claims, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, No. 01- 7006 (Fed. Cir. December 17, 2001). ORDER Entitlement to service connection for residuals of gall bladder removal (cholecystectomy) is denied. Entitlement to service connection for residuals of a hysterectomy is denied. REMAND After careful review of the record, the Board finds that the issues on appeal for increased ratings must be remanded for further development. The Veteran asserts that her thoracolumbar spine disorder and left leg radiculopathy have recently worsened. At the 2013 videoconference hearing, she said that now experiences daily pain and limitations of movement due to her thoracolumbar spine condition. She continues to be seen by a private physician for her complaints and is prescribed a pain medication. She also has left leg residuals to include numbness and left foot drop. (See hearing testimony transcript pgs. 12-20.) As to her service-connected ventral hernia repair and hemorrhoids, the Veteran testified that she has a lump at the surgical site which is tender and painful. As for her hemorrhoids, she asserts that she had both internal and external hemorrhoids, and they are recurring. (See hrg. tr. at pgs. 4-7.) Under the circumstances, the Board finds VA is required to afford the Veteran contemporaneous VA examinations to assess the current nature, extent, and severity of her disabilities on appeal. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). Thus, these issues must be remanded. Accordingly, the case is REMANDED for the following action: 1. The Appeals Management Center (AMC)/RO should contact the Veteran and request that she identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated her for her service-connected conditions, on appeal. With any necessary authorization from the Veteran, the AMC/RO should attempt to obtain copies of pertinent treatment records identified by the Veteran that are not currently of record. All efforts to obtain these records must be documented in the claims file. If any records cannot be obtained, it should be so stated, and Veteran is to be informed of such. 2. After the above has been completed, the RO should schedule the Veteran for an appropriate VA examination to determine the nature, extent, frequency and severity of any orthopedic and neurologic impairment related to or part of the Veteran's thoracolumbar spine disorder following lumbar fusion and discectomy, to include her left leg radiculopathy. The claims folder should be made available to and reviewed by the examiner, and all necessary tests should be conducted. The examiner should identify all thoracolumbar spine orthopedic and left leg neurologic pathology found to be present. The orthopedic aspect of the examination should include all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, the examiner should express any functional loss in terms of additional degrees of limited motion of the Veteran's low back, i.e., the extent of the Veteran's pain-free motion. In addition, to the extent possible, the examiner should state whether the thoracolumbar spine disability has been productive of any incapacitating episodes, defined as periods of acute signs and symptoms that require bed rest prescribed by a physician or treatment by a physician. If so, describe the frequency and duration of those episodes. The examiner must also discuss the nature and severity of any left leg extremity neurologic impairment found to be present. If possible, the severity of the radiculopathy should be described as mild, moderate, or severe. After all necessary tests are conducted, the examiner must opine as to the functional impairment of the Veteran's thoracolumbar spine and left leg radiculopathy (orthopedic and neurologic) disabilities. A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 3. Following completion of the development requested in paragraph 1, above, the RO/AMC should schedule the Veteran for an examination to determine the current nature and severity of her service-connected status post ventral hernia repair. The examiner must be provided with the Veteran's claims file and fully review it. The examiner should specifically address the following: Whether the Veteran's ventral hernia repair residuals are best described as postoperative, healed, no disability, belt not indicated; or best described as small, not well supported by belt under ordinary conditions, or healed ventral hernia or post-operative wound with weakening of abdominal wall and indication for a supporting belt; or large, not well supported by belt under ordinary conditions; or massive, persistent, severe diastasis or recti muscles or extensive diffuse destruction of weakening of muscular and fascial support of abdominal wall so as to be inoperative. 4. Following completion of the development requested in paragraph 1, above, the Veteran should be scheduled for an appropriate examination to evaluate her internal and external hemorrhoids. The entire claims file, to include a complete copy of the REMAND must be made available to the examiner designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented history and assertions. All indicated tests and studies should be accomplished, to include observation of both internal and external hemorrhoids (with all results made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. 5. Review the examination reports to ensure that they are in complete compliance with the directives of this remand. If any report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). Note: The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on her claims. 38 C.F.R. § 3.655 (2013). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. If the Veteran fails to report to the scheduled examination, the AMC/RO should obtain and associate with the claims file a copy or copies of the notice or notices of examination sent to the appellant by the appropriate VA medical facility. 6. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If any claim remains denied, a supplemental statement of the case (SSOC) must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs