Citation Nr: 1703721 Decision Date: 02/07/17 Archive Date: 02/15/17 DOCKET NO. 04-38 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a gynecological disability, originally claimed as pelvic pain, to include uterine fibroids and residuals of a miscarriage. REPRESENTATION Appellant represented by: Mississippi State Veterans Affairs Board ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The appellant had Army Reserve service beginning in 1982. The record includes verification of a period of active duty for training (ACDUTRA) from May 1982 to October 1982. The appellant also had subsequent Reserve service. This matter comes before the Board of Veterans' Appeals (Board) from an August 2003 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Jackson, Mississippi. This matter was initially before the Board in September 2007 when the Board remanded it for additional development, to include a VA examination. It was again before the Board in July 2010 when the Board remanded it for various reasons, and noted that the appellant had failed to report for a follow-up VA examination, possibly because she had moved to a new address and failed to receive notice of the scheduled appointment. In May 2012, the Board again remanded the issue for another VA examination because the appellant once again failed to report to a scheduled examination, apparently because she had once again moved and failed to keep VA informed of her current address. In July 2013, the Board again remanded the issue because the appellant had changed representation. In January 2014, the Board remanded the issue because the RO had failed to mail a supplemental statement of the case to the correct representative. Most recently, in December 2014, the Board remanded the issue for a variety of reasons, to include scheduling the appellant for a VA examination, and to have the appellant provide updated private treatment records. FINDINGS OF FACT The most probative evidence of record is against a finding that the appellant has a gynecological disability to include uterine fibroids and residuals of a miscarriage causally related to, or aggravated by, active service. CONCLUSION OF LAW The criteria for service connection for a gynecological disability, originally claimed as pelvic pain, to include uterine fibroids and residuals of a miscarriage is denied. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137;38 C.F.R. § 3.303 3.304 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the appellant's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In December 2014, the Board remanded the appellant's claim, in part, for her to be afforded a VA examination with opinion. An August 2016 VA Form 27-0820 (Report of General Information) reflects that the requested VA examination was cancelled because the appellant failed to acknowledge the appointment and because the RO determined that both her telephone number and her address were incorrect or no longer in working order. It is well established that it is the appellant's responsibility to keep VA advised of his or her whereabouts. "There is no burden on the part of the VA to turn up heaven and earth to find [the appellant]." See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). The appellant has not provided good cause for failing to appear for her scheduled appointment or respond to VA communication attempts. When an appellant, without good cause, fails to appear for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). The Board also notes that in its December 2014 remand, it directed that VA obtain, with the cooperation of the appellant, updated private treatment records. In March 2015, the appellant reported to the Board that she was unable to obtain necessary private records from Dr. A.P, and via her Senator, she requested more time to obtain them. In an April 2015 letter, the Board advised the Senator's office that her claim was being developed by the Appeals Management Center and provided information on how to contact that office. The claims file includes some records from Dr. A.P. dated in February 2015. It has now been almost two years, and the appellant has had more than ample opportunity to provide VA with additional pertinent evidence, if any. She has failed to do so. "The duty to assist is not a one-way street. If a Veteran wishes help, [s]he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Finally, the Board finds that it need not consider whether additional military records with regard to dates of service are necessary, because, as discussed in further detail below the preponderance of the evidence is against a finding that the appellant has a current disability due to bleeding in service, or any other incident of service. Legal Criteria Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. 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 nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). The term "active military, naval, or air service" includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101 (21), (24); see also 38 C.F.R. § 3.6. Diseases or injuries incurred or aggravated while performing ACDUTRA are eligible for service connection. 38 U.S.C.A. §§ 101 (24), 106, 1131. In other words, when a claim is based on a period of ACDUTRA, there must be evidence that the individual concerned died or became disabled during the period of ACDUTRA as a result of a disease or injury incurred or aggravated in the line of duty. 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 achieve veteran status for purposes of that claim. See 38 U.S.C.A. § 101 (2)-(24). Presumptive periods do not apply to periods of ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Analysis The Board has reviewed all of the evidence in the appellant's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Initially, the Board notes that the appellant has been inconsistent with the onset date and location of her claimed disability. In 2002, when the appellant filed her claim for compensation benefits, she reported that her "pelvic" disability began on July 22, 1987 at Fort McClellan, Alabama. She has also stated that the onset was a miscarriage at Ft. Dix, New Jersey between June and October 1982. She also stated that the incident occurred at Ft. Leonardwood, Missouri. (See March 2013 VA Form 21-0781a). Also, she has stated that she had her miscarriage in 1983 at Fort Campbell, Kentucky and that no follow up was done. She reported that she was bleeding and taken by ambulance to the hospital. (See VA Form 21-4138 dated April 2004.) The Board finds for the reasons noted below that service connection is not warranted. As noted above, the appellant had a verified of a period of active duty for training (ACDUTRA) from May 1982 to October 1982. The appellant's STRs reflect in June 1982, she had lower back pain for one day with some radiation to the flanks; the assessment was mild back strain to lower lumbar area. Trichomoniasis, a sexually transmitted disease (STD), was also noted. An August 5, 1982 record reflects that a pregnancy test was reported as negative by the appellant. An August 6, 1982 Medical History report reflects that the appellant indicated that she had never had treatment, operations, or the condition of pregnancy. The appellant's STRs for this period of ACDUTRA are negative for uterine fibroids, a miscarriage, or residuals of a miscarriage. A May 30, 1983 STR reflects that the appellant complained of foot pain and abdominal pain to the lower abdomen. A May 31, 1983 record reflects that the Veteran was seen for abdominal pain. She reported that her period started on May 15 and she had been bleeding since. She remarked that she had stopped taking her birth control pills 18 months earlier. She had bilateral abdominal pain. Another May 31, 1983 STR (Triage Note Method of Arrival) reflects that the appellant had been having menstrual problems for two weeks. Another May 31, 1983 STR reflects a diagnosis of questionable PID (pelvic inflammatory disease). June 2, 1983 and June 7, 1983 STRs reflect a positive UCG (urine chorionic gonadotrophin) and that the appellant was to be seen for an ultrasound to rule out an ectopic pregnancy. A June 7, 1983 (a Tuesday) pelvic ultrasound record reflects as follows: A normal size uterus is seen in mid-line. The echo pattern is also normal. There is no evidence of a gestational sac or ring. Slight shadowing from opposing endometrium is seen on several views. Both the ovaries are identified and have a normal echo pattern and size. Behind the uterus and to the right greater than left there is some free fluid. A definite mass cannot be identified. Impression: Normal uterus and ovaries with some free adnexal and retrouterine fluid. No evidence of intrauterine or ectopic pregnancy. Thus, when the appellant presented to medical personnel on June 7, 1983, the evidence was against a finding that she was pregnant. As noted above, there was no evidence of a gestational sac or ring, no evidence of an intrauterine pregnancy, and no evidence of an ectopic pregnancy. A June 10, 1983 STR reflects that the appellant reported intermittent vaginal bleeding since May with abdominal cramps. It was noted that she presented by ambulance with abdominal cramping and vaginal bleeding. The bleeding had begun on May 15 with her normal menses and had been intermittent ever since. The appellant reported that she was "diagnosed pregnant by urine and blood test on Tuesday and that she was 4-6 weeks pregnant. No tissue was passed - has not used ?? yet. Has had abdominal cramps [for] two weeks." The appellant was diagnosed with non acute vaginal bleeding. A September 1984 STR (the appellant was age 27) reflects that the appellant complained of a three-day history of back pain and lower abdominal pain. It was noted that she had a positive GC (gonococcal infection) by culture in 1978 but not confirmed recent GC contact. The appellant complained of left flank pain and was positive for recent heavy lifting. She also had left lower quadrant pain. She had no vaginal discharge and had light dysuria (painful or difficult urination) for three days only. The assessment was possible GC contact. It was noted that there was no other pathology. A June 25, 1986 STR reflects that the appellant had a sexual contact with someone on June 23, 1986 and that she subsequently had itching. Her last menstrual period was on June 22, 1986. She was seen for a possible STD. It was noted that the appellant would not be at Fort McClellan at the time of her results of her STD testing and would go to a physician at home. The appellant also had two weeks of active duty for training at Fort McClellan, Alabama in 1987. A July 15, 1987 STR reflects that the appellant, prior to her two weeks of active duty for training in the National Guard, had been in a motor vehicle accident. She reported neck, lumbar, and right leg pain. She had a prescription for medication which had run out. A July 22, 1987 STR (sick slip) reflects that she complained of pain in the pelvic area. It was noted that she had "traumatic injury to pelvis." A July 22, 1987 STR reflects that the appellant reported pain in the left groin area after being hit with machinery the day prior. She was instructed to refrain from heavy lifting, return to the clinic as needed, and take Motrin. Additional records reflect that the appellant had a history of a kidney infection at age 12 or 13 and was hospitalized for four days at that time. She was also noted to have vaginitis (an inflammation of the vagina) for four days in July 1985. An April 1990 STR reflects complaints of low back pain. The appellant's last menstrual period had been in January. Her HCG was negative. A July 1991 Report of Medical History for quadrennial purposes reflects that the Veteran reported that she had never been treated for a female disorder or had a change in menstrual pattern. Records reflect that the appellant had a tubal ligation in 1994. A North Mississippi Medical Center March 1994 record reflects that the appellant had a tubal banding and fulguration. It was noted that she was a nulligravida female with chronic hypertension and desired a permanent sterilization. A "nulligravida" is a woman who has never been pregnant. It was noted that the appellant "does not wish to have children and is concerned because of her hypertension as well as her age." Records in March 1994 and April 1994 all reflect that she had never been pregnant and desired to a tubal ligation because she did not "wish childbirth" and/or "did not wish to have children." An April 1997 Report of Medical Examination for periodic purposes reflects that the appellant had a laparoscopy scar by the umbilicus secondary to a tubal ligation. It was further noted that she was to bring a note from her OBGYN regarding her pelvic and breasts. Her accompanying Report of Medical History reflects that she denied having been treated for a female disorder or having had a change in menstrual pattern. A January 2000 Chickasaw Family Medical Center record reflects that the appellant had been seen for a rheumatoid evaluation. The record reflects that she reported that her Ob-gyn history included only one prior pregnancy (Gravida 1) with a spontaneous abortion on the fourth or fifth month of gestation. (This differs substantially from her other contention that she had had a spontaneous abortion during the fourth or fifth week of gestation.) A July 2000 Chronologic Record of Medical Care record reflects that the appellant had a diagnosis of fibromyalgia. A December 2008 private record (North Mississippi Medical Clinics, Inc.) record reflects that the appellant reported a past history of a miscarriage 21 years earlier, which would have been in approximately 1987. The claims file also contains several "buddy statements"; however, the Board finds that they lack significant probative value. Sergeant First Class (SFC) B.T. wrote that the appellant was attending active training at Fort Campbell and was sent to the hospital by ambulance and told that she was pregnant. However, as a layperson SFC B.T. is not competent to diagnose a pregnancy in its early stages as pregnancy is not observable in the early weeks of pregnancy without specialized testing. Staff Sergeant (SSG) E. ? wrote that the appellant, while doing two weeks of training at Fort Campbell was told that she had a miscarriage. She further contends that she later learned that the appellant had to return to her doctor in Tupelo because the baby was still inside of her. E. has not provided any information as to why she believes that the appellant was pregnant and suffered a miscarriage other than the appellant's assertion. As a layperson SSG E. is not competent to diagnose a pregnancy in its early stages, as pregnancy is not observable in the early weeks of pregnancy without specialized testing. Moreover, the statement that the "baby was still inside" of the appellant is directly contrary to the clinical records contemporaneous to treatment which reflect that she did not have a fetus inside of her (e.g. see June 7, 1983 ultrasound report.) SSG R.S. wrote that the appellant had collapsed and was taken away by ambulance. It is not disputed that the appellant was taken by ambulance to a treatment facility in 1983 when she was bleeding vaginally. S.K. wrote that the appellant had been misdiagnosed while pregnant, and had been told that she had been pregnant and had had a spontaneous abortion. Again, S,K. has not provided probative evidence that she had firsthand knowledge that the appellant had a viable pregnancy while on active duty for training. As a layperson S.K. is not competent to diagnose a pregnancy in its early stages, as pregnancy is not observable in the early weeks of pregnancy without specialized testing. In addition, S.K. wrote that the appellant's spontaneous abortion resulted in sterility; this is contradicted by the other evidence of record. The appellant's sterility has been shown by clinical records to be due to the appellant's election to have a tubal ligation because she did not want children. In correspondence received in 2009, the appellant stated that after arrival at Fort Campbell for annual training, she began having severe stomach cramps. She further stated that she was given a sonogram, told that she was pregnant, and told that she was having a spontaneous abortion. However, as noted above, the sonogram (ultrasound) reflects that she was not pregnant. In addition, the appellant indicated that the stomach cramps began after she arrived for annual training. However, the records contemporaneous to service reflect that she had been bleeding prior to arriving for two-week annual training. Finally, the appellant stated that she never received a D&C (Dilation and Curettage) and was sent home to find a doctor herself at the end of the annual training. The appellant has not presented any credible competent evidence to support a finding that she had a viable pregnancy upon arrival on ACDUTRA, and that she began to have a miscarriage while on ACDUTRA or that she has a current disability as a result. In a July 2010 VA Form 21-4138, the appellant stated that in 1983, she had miscarriage. She stated that she was doing PT and her stomach started cramping. She further stated as follows: I asked the drill sergeant if I could go the bathroom and he said yes. I was bleeding so I thought that I was just having my regular monthly menstrual cycle. The next morning, I was bleeding heavily. They called an ambulance and I was taken to the hospital where the test were performed. I was told that I was pregnant and that I was self-aborting. I was not given a D&C but given some medications to take. It took several months to recover from this and I still have depressed due to the fact that I can't have children. The Board finds that the statement lacks probative value. The medical records do not support a finding that the Veteran cannot have children due to any incident in service. An October 2009 VA examination report reflects that the Veteran reported that due to a tubal pregnancy, she experienced a miscarriage in 1983. She reported that [while in service], she was taken by ambulance to the emergency room one morning due to experiencing a large amount of vaginal bleeding. She further stated that she was told to come back the next day for an ultrasound which determined that she was pregnant and having a miscarriage at four to five months gestation. She further reported that it took her nine months to thoroughly miscarry, and that she had pain and cramping in the left suprapubic area due to internal scarring. As noted above, the ultrasound taken while on ACDUTRA reflects that the Veteran did not have a tubal pregnancy or an intrauterine pregnancy of four to five months duration. A 2009 x-ray reflects "somewhat vague area of slightly altered echogenicity within the fundus of the uterus which suggests a uterine fibroid; otherwise no pelvic abnormalities are seen." It was noted that an etiology opinion as to pelvic pain could not be made because the appellant did not keep an appointment for additional diagnostic testing. 2013 records from Physicians and Surgeons Clinic Ob/Gyn reflect that the appellant was scheduled for a TLH/BSO (total laparoscopic hysterectomy/bilateral salpingo-oophorectomy) in August 2013 secondary to pelvic pain/uterine fibroids. The records reflect that she had adhesions from the left ovary and the left fallopian tube to the left pelvic sidewall. A May 2013 ultrasound revealed a 2cm fibroid and a 1 cm fibroid, both on the left lateral aspect of her uterus. It was noted that her past medical history was noncontributory. A July 2013 record reflects that it was explained to the appellant that her pain "may not be from fibroids but no other source is presently obvious." Records reflect she had pelvic pain and leiomyomata of the uterus with pelvic adhesion disease. March 2013 VA examination reports reflect that the appellant reported a spontaneous abortion in 1983 and pelvic adhesions in 1994. The report reflects that the appellant denied any previous history of uterine fibroids. A VA examiner did not discuss the 2009 x-ray findings. In sum, the record reflects that when the appellant began two weeks of annual training in 1983, she already had vaginal bleeding (i.e. she had bleeding since May 15, 1983. As she was still on her two weeks of active duty for training on June 10, 1983, she started bleeding prior to active service.) While blood tests were shown to be positive for an indication of a pregnancy, an ultrasound reflected that she was not pregnant. Moreover, while there was a questionable diagnosis of PID, this was not confirmed, and there is no evidence that if she had such, it was not as likely as not due to a period of active service, especially as the Veteran's bleeding began prior to active duty for training. In addition, there is no competent clinical evidence that her STDs noted in her STRs caused PID. (The Board also notes that the Veteran had an STD reported in 1979 prior to entrance into service in 1982 - See 1982 Report of Medical History.) The preponderance of the evidence is against a finding that the Veteran has a current disability causally related to service. The Board acknowledges that the appellant has had some medical training (e.g. a course in phlebotomy). However, she has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disabilities. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case in light of the education and training necessary to make a finding with regard to the complexities of the female gynecological system, and in light of the appellant's other disabilities which may cause pain to include rheumatoid arthritis and/or fibromyalgia. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for a gynecological disability, originally claimed as pelvic pain, to include uterine fibroids and residuals of a miscarriage, is denied. ____________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs