Citation Nr: 1605828 Decision Date: 02/16/16 Archive Date: 03/01/16 DOCKET NO. 09-09 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for residuals of sterilization. (The issue of entitlement to payment of medical expenses incurred for in vitro fertilization is the subject of a separate decision by the Board of Veterans' Appeals.) REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from April 1997 to January 2004. This matter comes before the Board of Veterans' Appeals (Board) from a 2009 decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Seattle, Washington. In January 2010, the Veteran at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in March 2010 and was remanded for further development. It has now returned to the Board for further appellate consideration. FINDINGS OF FACT 1. The Veteran had an elective sterilization, which was not due to disease or injury, in service. 2. The Veteran does not have any medically identified disabling residuals from the in-service sterilization other than the planned consequences of elective sterilization. CONCLUSION OF LAW The criteria for service connection for residuals of sterilization have not been met. 38 U.S.C.A. §§ 1110, 1113, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Notice was provided in February 2009. VA has a duty to assist the appellant in the development of the claim. The claims file includes service treatment records (STRs), post service medical records, and the statements of the Veteran in support of the claim. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain. The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Analysis The Veteran underwent sterilization in service and now contends that she did not fully understand the lasting effects of the procedure. The Board finds, for the reasons noted below, that service connection is not warranted. An in-service August 12, 2003 Patient Needs & Health Assessment form reflects that the Veteran was seen for tubal ligation evaluation. The record noted that the Veteran "desires a tubal ligation and respectfully declines other methods of birth control included vasectomy for her husband." It was further noted that she was using OCPs [oral contraceptive pills] for birth control. The record reflects as follows: [the Veteran] was extensively counseled about alternatives and risk of tubal ligation. Alternatives discussed included abstinence [sic], barrier methods, OCPs, the patch, Depo-Provera, IUD, and vasectomy. . . . Tubal ligation is not meant to be reversed and is a permanent procedure. After counselling, the [patient] understand and had all questions answered. She desires to proceed with tubal ligation. Written content was obtained. [Patient] was also counselled about the Enssure [sic] micro insert method through hysteroscopy and expressed a strong desire for this method - information pamphlet was give out to [patient]. She desires tubal ligation regardless of method if the first method of choice is not possible. (emphasis added). Thus, the record contemporaneous to service reflects that the Veteran was informed that sterilization was permanent. It also reflects that the Veteran desired the procedure and she was the one who initiated the discussion of permanent sterilization. An August 22, 2003 STR detailing a telephone consultation reflects that the Veteran was calling to verify her report time for surgery, which was scheduled for August 25, 2003. An August 25, 2003 STR reflects that the Veteran initially presented with "undesired fertility and desired permanent sterilization." (emphasis added) It was noted as follows: [the Veteran was] extensively counseled about the alternatives as well as the risks and benefits of tubal ligation. The patient respectfully declined all other methods of birth control, including vasectomy, and desired to proceed with tubal occlusion. She was additionally counseled on the Essure micro-insertional method via hysteroscopy and written consent was obtained. (emphasis added). The August 25, 2003Ambulatory Surgery Physician Report reflects, in pertinent part, as follows: choice- [patient] to have micro-insertion method via hysteroscope- general anesthesia is not required for this procedure, however, will need to convert to general if, the procedure is unable to be completed. Would then convert to laparoscopic technique. The Veteran was also informed of the possibility of injury to pelvic or other organs, death, bleeding, transfusion with associated risks of AIDS, hepatitis, infection, prolonged stay in the hospital or ICU, and possible need for repeat surgery. It was noted that the Veteran desired "permanent sterility". The Veteran separated from service approximately four months later, in January 2004, with no complications from her procedure. Five years later, the Veteran sought consultation regarding getting pregnant. A January 2009 Women's Health Consult reflects that the Veteran had "remarried and now want[s] to become pregnant. She is health[y] her husband is healthy - he has not had children. I discussed IVF with she and her husband and sent in a Fee Base request for IVF today. IFV is the only way she will be able to conceive given the blocked tubes." A May 2009 Social Work note reflects that the Veteran reported that she had a tubal ligation by Essure when she was 25 in the Army after having two children at that time and was in the process to be deployed. The Veteran reported that "she didn't think she was counseled on the long term effects as she thought she could reverse at any time. Veteran is now in new relationship and would like to try to have another baby." The Board disagrees with the Veteran's post service recollection as to not having been counseled on the long term effects of tubal ligation or sterilization. The STRs reflect that she requested sterilization, she was informed that the procedure was not meant to be reversed, and she was given an information pamphlet on the procedure. In her VA Form 9, dated in February 2009, the Veteran stated that when she had the Essure procedere done, she had "made a horrible decision to get the procedure but I was in a bad place in my life." In her VA Form 9 dated in July 2009, the Veteran stated that she was unable to take birth control without feeling sick. She stated that she was not counseled but was instead asked if one of her two children died, would she want to have another chid to replace them. Although it is not explicit, it appears to the Board that the clinician was presenting the Veteran with a worst case scenario to ensure that the Veteran understood that, should one of the Veteran's children die, and she subsequently desired another child, she would not be able to conceive after a tubal ligation. Nevertheless, her recollection is inconsistent with the contemporaneous treatment records that show that counseling included emphasis on the permanent nature of the procedure. The Veteran also stated in 2009 that at the time of her tubal ligation, she was not given other options such as Depo-Provera or other alternatives that do not require surgery but work as birth control. Again, the Board disagrees with the Veteran's recollection of her consultation in service. The STRs reflect that she was informed that if she did not want to become pregnant, there were alternatives to permanent sterilization including abstinence, barrier methods, birth control pills, a birth control patch, the Depo-Provera shot, an IUD (intrauterine device), and a vasectomy for her partner. In her September 2009 VA Form21-4138, the Veteran stated that she was in a horrible state of mind and decided to have the Essure procedure, she was married to a service member, had two children, and was in jeopardy of being stop-loss'ed and deployed for 18 months, instead of finishing out her last year and spending time with her children. First, there is nothing in the STRs which reflects that the Veteran was not in the appropriate state of mind to make an informed decision as to having the procedure. The record reflects that she initiated a consultation, had a consultation on August 12, 2003, she called ten days later to make sure that she was scheduled for the procedure, and had the procedure three days after that. She had approximately two weeks after her consultation and prior to the procedure to ask questions or change her mind. There is nothing in the clinical records which reflects that she was unable to make a competent decision. The Veteran testified at the January 2010 Board hearing that she wanted to get her "tubes tied" and the doctor with whom she had consulted in the military explained a "new procedure" which only had research up to four years "so that after four years people could be pregnant. They couldn't, they had no research after four years." The Board disagrees with the Veteran's interpretation of the information she may have been provided. Merely because the research had not been completed for more than four years does not change the fact that the Veteran was told that the procedure was meant to be permanent. The Veteran also testified that based on her discussions with the doctor, she did not feel as if it was properly explained to her that the Essure procedure was not reversible. However, she readily admits that when she was being counseled the clinician provided her with a worst case scenario regarding her inability to have children should she want another one. The Veteran also testified that she needed an alternative to birth control medication because the medication made her nauseous. She stated that she wished the clinician "would've sat me down and actually counseled me on other options besides surgery because, I mean, I would've got a shot [of Depo-Provera]". As noted above, the record reflects that she was counseled on other options. In addition, it was the Veteran who requested a tubal ligation rather than another method of birth control. The Veteran also testified that "I voluntarily wanted to have a birth control procedure done that was permanent but ultimately could be redo. I mean, like the tubes tied, that was the most permanent thing I really wanted to do. But the way it was laid out to me were - it wasn't laid out to me whether it's as irreversible as I'm learning it is right now." She testified that she thought that tying the tubes was not permanent, and could be reversed by "they just have to untie them and reconnect them." 2012 VA records reflect that the Veteran desired a tubal reversal with a history of Essure, and that she would be referred to UCLA because VA obgyn does not perform the procedure. The definition of permanent is "fixed and changeless; lasting or meant to last indefinitely. Not expected to change in status, condition, or place." (See The American Heritage Dictionary.) Thus, by its definition, it is not meant to be reversible. The Veteran also testified that "[p]ermanent sterilization was not my desired outcome. Sterilization for the time being was my outcome, not permanent, that was not my outcome." However, the Board finds that this is less than credible based on the STRs. The Veteran has also stated that at the time of her decision to have the procedure, she was only 26 years old, had two children, was in an unhappy marriage, was a service member (as was her husband), was facing a stop-loss for deployment, and did not want to be pregnant and leave any more kids behind if she were deployed. The Board notes that the Veteran was of age to consent to the procedure. In addition, her assertion that she did not want to get pregnant at that time because she might deploy and have to leave a child behind is less than reasonable. The Veteran was scheduled to separate from service four months after her procedure date. If she had become pregnant without the procedure, she likely would not have deployed. The Board has considered the Veteran's other remaining complaints but finds that they do not support a finding that she did not know that she was getting a permanent tubal ligation in service. The Veteran has asserted that she was not properly counseled about the aspects of in vitro; however, while in service, she was not undergoing in vitro, nor was she even interested in having any more children. Thus, counseling on such a procedure was not warranted. She also contends that someone other than the doctor should have counseled her, but she has not stated how this supports a finding that she was not told that she was electing a permanent procedure. She also contends that perhaps she should have been counseled by a female. The Board finds that a person with appropriate medical training (regardless of gender) would be capable of explaining sterilization to a patient. There is no indication that the medical personnel who counseled the Veteran in connection with her in-service procedure lacked proper training. The Veteran's in-service sterilization was performed at her election and not related to a disease or injury, and as such, does not fall into the category of in-service disease or injury. There is no in-service indication that there were any surgical complications from the sterilization. There are no medically identified disabling residuals from the sterilization other than the planned consequences of elective sterilization. In the absence of disability due to disease or injury from the in-service tubal procedure, the requirements for service connection are not met. The Board finds that the Veteran underwent an informed elective sterilization procedure in service because of her desire to not have additional children. The fact that years later her situation changed (i.e. no longer in service and had a new partner) is immaterial. The fact that the effectiveness of a reversal for a tubal ligation (tubes tied) may be higher than a reversal after an Essure procedure is also irrelevant. Both procedures are meant to be permanent, and she chose the Essure procedure. The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury was otherwise aggravated by service. 38 C.F.R. § 3.306 (b)(1). The Veteran's in-service sterilization, which was elective, had the intended result of altering a condition that existed prior to service, and which cannot be said even to have been a disorder, namely the Veteran's fertility. There is no medical evidence that the procedure in service resulted in unintended sequelae or abnormalities. The Veteran's change of heart and desire to now have another child is not a medical disease or disability. Therefore, there is no medical evidence of a current disability for which VA compensation can be granted. Service connection for sterilization, or residuals of such, is not warranted. Brammer v. Derwinski, 3 Vet. App. 223 (1992). ORDER Entitlement to service connection for residuals of sterilization is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs