Citation Nr: 1544372 Decision Date: 10/19/15 Archive Date: 10/29/15 DOCKET NO. 12-13 186 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for uterine fibroids. 2. Entitlement to service connection for urinary incontinence with frequency, claimed as pressure in the abdomen, urge to urinate frequently, and urinary leakage, to include as secondary to uterine fibroids. REPRESENTATION Veteran represented by: James E. Connor, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Delhauer, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1990 to March 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina as part of the Benefits Delivery at Discharge (BDD) program. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in August 2015. A transcript of the hearing is associated with the Veterans Benefits Management System (VBMS). In August 2015, the Veteran submitted treatment records from Dr. S.M. regarding treatment for uterine fibroids. The Veteran has not waived her right to initial consideration of this evidence by the Agency of Original Jurisdiction, and the Board has not attempted to secure such a waiver from the Veteran. However, the Board finds that in light of the favorable actions herein regarding the Veteran's claims, no unfair prejudice to the Veteran will result by adjudicating the merits of the claims. This is a paperless appeal located on the Virtual VA paperless claims processing system. Other documents contained on VBMS include August 2015 and September 2015 letters from Dr. W.L.K., and treatment records from Dr. S.M. dated August 2013 to December 2013; other documents are duplicative of the evidence of record, or are not relevant to the issues currently before the Board. FINDINGS OF FACT 1. It is at least as likely as not that the Veteran's current uterine fibroids were incurred during her active duty military service. 2. It is at least as likely as not that the Veteran's urinary incontinence with frequency, claimed as pressure in the abdomen, urge to urinate frequently, and urinary leakage, is caused by her uterine fibroids. CONCLUSIONS OF LAW 1. Service connection for uterine fibroids is warranted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). 2. Service connection for urinary incontinence with frequency, claimed as pressure in the abdomen, urge to urinate frequently, and urinary leakage, as secondary to the Veteran's service-connected uterine fibroids, is warranted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Given the favorable disposition of the actions here, which are not prejudicial to the Veteran, the Board need not assess VA's compliance with the VCAA. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). Legal Criteria A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C.A. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established for any disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Uterine Fibroids The Veteran's private treatment records confirm that multiple uterine fibroids were diagnosed by the Veteran's private physician in December 2007, about nine months after the Veteran's separation from active duty service. See December 2007 Dr. W.L.K. treatment note; see also February 2008 Dr. C.M.D. letter. The Veteran was afforded VA examinations in November 2008 and March 2009, and both VA examiners confirmed the diagnosis of uterine fibroids. However, neither VA examiner opined as to the etiology of the Veteran's uterine fibroids. In a January 2010 letter, Dr. W.L.K. noted that in October 2007, the Veteran's intrauterine device (IUD) was removed, and in December 2007, she presented complaining of menorrhagia and dysfunctional uterine bleeding. An ultrasound revealed multiple uterine fibroids. Dr. W.L.K. stated, "The pathophysiology of uterine fibroids is that they often will slowly grow over a long period of time. The fact that [the Veteran] had a Mirena IUD in place could have masked any early symptoms that these fibroids might have caused with her menstrual cycles." In an August 2015 follow-up letter, Dr. W.L.K opined, "[I]t is my opinion that it is as likely as not that these fibroids were present in some significant capacity during [the Veteran's] term of service ending [in March 2007]." In a September 2015 letter, Dr. W.L.K. confirmed that the Veteran's menorrhagia is caused by her uterine fibroids. Considering the competent and credible evidence of record, including the objective medical evidence, as well as the lack of affirmative evidence to the contrary, the Board finds that the medical evidence of record supports the conclusion that the Veteran's uterine fibroids with menorrhagia were incurred during her active duty military service. Accordingly, the Board finds that a grant of service connection is warranted. Urinary Incontinence with Frequency In a February 2009 statement, the Veteran contended that she experiences pressure in her abdomen, the urge to urinate frequently, and urine leakage due to her uterine fibroids. Upon VA examination in March 2009, the VA examiner diagnosed incontinence with urinary fullness, pressure, and leakage, with an onset of 2007. In a September 2015 letter, Dr. W.L.K. stated that the Veteran's symptoms of abdominal pressure, an urge to urinate frequently, and incontinence were all present when he treated her, and opined that they are caused by, and secondary to, her uterine fibroids. Therefore, the Board finds that the medical evidence of record supports the conclusion that the Veteran's urinary incontinence with frequency, claimed as pressure in the abdomen, urge to urinate frequently, and urinary leakage, are caused by her now service-connected uterine fibroids. Accordingly, the Board finds that a grant of service connection is warranted. ORDER Entitlement to service connection for uterine fibroids with menorrhagia is granted. Entitlement to service connection for urinary incontinence with frequency, claimed as pressure in the abdomen, urge to urinate frequently, and urinary leakage, is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs