Citation Nr: 1752051	
Decision Date: 11/14/17    Archive Date: 11/22/17

DOCKET NO.  12-27 291	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for hypertension.

2.  Entitlement to service connection for endometriosis, status-post hysterectomy and hemi-oophorectomy.


REPRESENTATION

Veteran represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

K. K. Buckley, Counsel




INTRODUCTION

The Veteran served on active duty from July 1973 to December 1993.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In February 2016 and May 2017 Board decisions, the claims were remanded for further evidentiary development.  As will be discussed below, a review of the record reflects substantial compliance with the Board's Remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  The VA Appeals Management Center (AMC) most recently continued the previous denials in an August 2017 supplemental statement of the case (SSOC).  The Veteran's VA claims file has been returned to the Board for further appellate proceedings.


FINDINGS OF FACT

1.  Hypertension did not have its onset in service, did not manifest within the one year presumptive period, and is not otherwise related to the Veteran's active military service.

2.  The Veteran is not diagnosed with endometriosis; her hysterectomy and hemi-oophorectomy are not otherwise related to her active military service.


CONCLUSIONS OF LAW

1.  Hypertension was not incurred in or aggravated by the Veteran's military service, and may not be presumed to have been so incurred.  38 U.S.C. §§ 101, 1101, 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309 (2017).

2.  Endometriosis status-post hysterectomy and hemi-oophorectomy was not incurred in or aggravated by the Veteran's military service.  38 U.S.C. §§ 101, 1101, 1110, 1112, 1113, 1116, 5107 (West); 38 C.F.R. §§ 3.6, 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

The Veteran was afforded VA opinions in June 2017 and July 2017 as to the claimed hypertension and endometriosis disabilities.  The opinions provided by the VA examiners reflect that they thoroughly reviewed the Veteran's past medical history, and rendered findings that are responsive to the applicable legal criteria.  The Board therefore concludes that the June 2017 and July 2017 VA opinions are adequate.  See 38 C.F.R. § 4.2 (2017); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order").  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion with respect to the pending claims has been met.  38 C.F.R. § 3.159(c)(4).

Thus, the Board finds that VA does not have a duty to assist that was unmet.  Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011).



II.  Service connection

In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Certain chronic diseases, including a cardiovascular-renal disability (hypertension), may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service.  38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017).  The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases).  In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2017).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.




a. Hypertension

In this matter, the Veteran contends that she developed hypertension during her military service.  On review of the record, the Board finds that the preponderance of the evidence is against the claim.

The Veteran served on active duty from July 1973 to December 1993.  Notably, in her April 2010 notice of disagreement (NOD), the Veteran indicated that she had a blood pressure reading of 160/84 in May 1987, which was indicative of hypertension.  The Board observes service treatment records (STRs) dated in January 1990 note a blood pressure reading of 140/82.  However, the Veteran's service treatment records (STRs) do not document sustained elevated blood pressure readings or a diagnosis of hypertension.

A VA examination conducted in February 1994 documented blood pressure readings of 140/84 (sitting), 122/72 (recumbent), 133/78 (standing), 146/82 (sitting after exercise) and 132/84 (2 minutes after exercise).  Post-service treatment records documented elevated blood pressure readings dated in August 1997 (163/88 and 158/87), September 1997 (163/89), and October 1997 (177/88).  A diagnosis of stage I hypertension was indicated in October 1997.

Notably, treatment records dated in December 2005 indicated that the Veteran had difficult-to-control hypertension and a work-up revealed pheochromocytoma on her left kidney.  As such, a diagnosis of malignant hypertension was indicated.  The Veteran subsequently underwent excision of the left adrenal pheochromocytoma in December 2005.

Pursuant to the May 2017 Board Remand, the Veteran was afforded a VA examination in July 2017, at which time the examiner determined that the Veteran's hypertension "was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness."  The examiner stated that, with respect to the diagnosed malignant secondary hypertension, the condition had resolved after the pheochromocytoma was excised.  The examiner further concluded that the Veteran's essential hypertension was not incurred in or caused by her active duty military service.  The examiner explained that a thorough review of the Veteran's STRs "shows no indication that she suffered from or was being treated with medication for hypertension."  The examiner noted that the February 1994 VA examination was silent for any diagnosis of hypertension, and did not indicate that the Veteran was on medication to control elevated blood pressure.  The examiner indicated that the Veteran's hypertension was not diagnosed until October 1997, four years after her military discharge.  The examiner further opined that hypertension is not uncommon in the general population, as it is a worldwide epidemic to which people are pre-disposed due to environmental and genetic risk factors.

When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered.  The opinion is considered probative if it is definitive and supported by detailed rationale.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000).  The United States Court of Appeals for Veterans Claims (Court) has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions.  A medical opinion that contains only data and conclusions is not entitled to any weight.  Further a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from.  "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Significantly, the findings of the July 2017 VA examiner were thoroughly explained and fully supported by the evidence of record, as well as the pertinent medical literature.  To this end, the Board notes that the July 2017 medical opinion was based on a review of the record, including the lay statements and evidence submitted by the Veteran, and the examiner explained the reasons for her conclusions based on an accurate characterization of the evidence of record.  The Board therefore places significant weight on the findings of the July 2017 VA examiner.  See Nieves-Rodriguez, supra; see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion").  Accordingly, the Board finds that the competent medical evidence demonstrating the absence of nexus between the claimed disability and the Veteran's active duty service outweighs any medical evidence suggestive of a nexus.

The Board has carefully considered the contentions of the Veteran that the currently diagnosed hypertension was incurred during her military service.  To this end, the Board recognizes that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana, 24 Vet. App. at 433, n. 4.  In this case, the Veteran's assertions as to etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses.  Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer").  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge).  Questions of competency notwithstanding, the Veteran's lay theory regarding the etiology of her hypertension are contradicted by the conclusion of the July 2017 VA examiner who specifically considered the Veteran's lay statements in rendering her negative opinion.  The Board finds the specific, reasoned opinion of the trained health care provider who conducted the July 2017 VA opinion to be of greater probative weight than the more general lay assertions of the Veteran.
The Board has considered that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence.  Buchanan, supra.  Crucially, however, the Veteran's contentions in support of service connection, including continuing post-service symptomatology of the currently diagnosed hypertension are contradicted by the findings of the July 2017 VA examiner who specifically considered the lay assertions and any such inferences contained in the record in rendering the negative nexus opinion.

Considering the overall evidence, including the post-service medical evidence, the July 2017 VA medical opinion, and the lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater probative value.  In conclusion, the preponderance of the evidence is against the Veteran's claim that she suffers from hypertension, which is related to her military service.  Thus, the benefit-of-the-doubt rule is not applicable to the claim.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54-56.

b. Endometriosis status-post hysterectomy and hemi-oophorectomy

In this matter, the Veteran contends that she developed endometriosis during her military service, which led to a post-service hysterectomy and hemi-oophorectomy.  On review of the record, the Board finds that the preponderance of the evidence is against the claim.

The Veteran asserts that her STRs reflect complaints of painful sex, pelvic pain, and abdominal cramps, as well as medical determinations of acute and chronic inflammation of the cervical tissue, fibroid uterus, and abnormal bleeding.  She argues that these conditions are accepted in the professional medical community as symptoms of endometriosis and that her condition went undiagnosed while in service.  See, e.g., the NOD dated April 2010.

To this end, the Veteran's STRs document repeated complaints of abdominal pain and irregular vaginal bleeding.  See the STRs dated July 1973, February 1974, July 1975, and March 1976.  In July 1987, the Veteran complained of dyspareunia with bleeding after intercourse.  She underwent an open laparoscopy and incomplete bilateral tubal ligation secondary to surgical complication.  A lipoma was also excised from the abdominal wall at that time.  The Veteran continued to suffer from pelvic pain and a September 1990 abdominal ultrasound revealed right and left ovarian follicular cysts.  A diagnosis of questionable endometriosis was indicated at that time.  She subsequently underwent a diagnostic laparotomy, open laparoscopy, and bilateral tubal electrofulguration, which found no evidence of endometriosis or adhesions.  See the STR dated January 1991.

The Veteran was afforded a VA gynecological examination in March 1994, at which time she reported pelvic cramping and burning that had persisted for nine years.  The examiner noted the Veteran's dyspareunia, dysmenorrhea, and hypermenorrhea.  The examiner reported that the Veteran had "what was called minimal endometriosis" in 1987.

In a July 1994 rating decision, the Veteran was service-connected for residuals of laparoscopy and assigned a noncompensable rating.

Post-service treatment records document a notation of proliferative endometrium in April 1999.  Metromenorrhagia and uterine hyperplasia were noted in an August 2003 treatment record.  

The Veteran was afforded a VA examination in February 2010, at which time the examiner noted a diagnosis of endometriosis.  The examiner further stated that the endometriosis was incurred after the Veteran's military service and was not caused by or related to her military service.  However, the examiner did not provide any rationale to support his diagnosis or conclusion.

In July 2016, the Veteran was afforded another VA gynecological examination.  The examiner indicated that the Veteran had never been diagnosed with endometriosis and reported that there was insufficient evidence to warrant or confirm a diagnosis of an acute or chronic endometriosis condition or its residuals at that time.  However, the July 2016 examiner failed to acknowledge the diagnosis of endometriosis provided by the February 2010 VA examiner, as well as a previous diagnosis of minimal endometriosis provided by a VA examiner during a March 1994 examination.

As such, the matter was remanded in May 2017 for a VA addendum opinion.  The Veteran was accordingly afforded a VA addendum opinion in June 2017 as to her claimed endometriosis.  The examiner thoroughly reviewed the Veteran's medical history and concluded that "[t]here is insufficient evidence to warrant or confirm a diagnosis of acute or chronic endometriosis or its residuals."  The examiner explained that the previous diagnoses of endometriosis by the March 1994 and February 2010 VA examiners were inaccurate.  The examiner stated that the Veteran's total abdominal hysterectomy with left salpino-oophorectomy due to fibroid uterus was not caused by or related to her active duty service.  The examiner explained that the Veteran's STRs, including multiple gynecological examinations, three diagnostic laparscopies done in 1987, 1990, and 1991, and multiple pelvic/transvaginal ultrasounds, were silent for uterine fibroids.  In fact, uterine fibroids were not diagnosed until a 2002 pelvic ultrasound revealed the development of multiple fibroids nine years after the Veteran's military discharge.  The examiner further explained that the Veteran's dyspareunia and severe dysmenorrhea were caused by an inability to relax during sexual relations.  Dysmenorrhea is menstrual cramping, which the examiner noted is not uncommon in the general female population.  The examiner noted that metromenhorhagia means heavy menstrual bleeding.  The examiner opined that despite the symptomatology noted in the Veteran's STRs including dyspareunia, dysmenorrhea, and metromenhorhagia, the Veteran did not have any objective evidence of endometriosis or uterine fibroids during her military service.  Rather, the examiner stated that post-service treatment records dated in May 2002 clearly indicate new symptomatology of heavy flow with intermenstrual bleeding for 1.5 years with passage of golf-ball size clots.  At that time, the pelvic ultrasound showed multiple uterine fibroids for the first time.  The examiner then concluded, "[h]ence, despite Veteran's subjective symptoms and assertions, these are not caused by or related to" the claimed endometriosis and post-service diagnosis of uterine fibroids.

Significantly, the findings of the June 2017 VA examiner were thoroughly explained and fully supported by a detailed review of the Veteran's medical history.  To this end, the Board notes that the June 2017 medical opinion was further based on a review of the record, including the lay statements and evidence submitted by the Veteran, and the examiner explained the reasons for her conclusions based on an accurate characterization of the evidence of record.  The Board therefore places significant weight on the findings of the June 2017 VA examiner.  See Nieves-Rodriguez, supra; see also Bloom, supra.  Accordingly, the Board finds that the competent medical evidence demonstrating the absence of nexus between the claimed disability and the Veteran's active duty service outweighs any medical evidence suggestive of a nexus.

The Board has carefully considered the contentions of the Veteran that she suffers from endometriosis, which led to a hysterectomy and hemi-oophorectomy due to uterine fibroids.  To this end, the Board recognizes that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent.  See Davidson; supra; Kahana, 24 Vet. App. at 433, n. 4.  In this case, the Veteran's assertions as to diagnosis and etiology concern internal medical processes, which extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses.  Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-9; Falzone, 8 Vet. App. at 403 (lay person competent to testify to pain and visible flatness of his feet); with Clemons, 23 Vet. App. at 6 ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert, 21 Vet. App. at 462 (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer").  See also Colantonio, 606 F.3d at 1382 (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge).  Questions of competency notwithstanding, the Veteran's lay theory regarding the diagnosis and etiology of her claimed disability are contradicted by the conclusion of the June 2017 VA examiner who specifically considered the Veteran's lay statements in rendering her negative opinion.  The Board finds the specific, reasoned opinion of the trained health care provider who conducted the June 2017 VA opinion to be of greater probative weight than the more general lay assertions of the Veteran.

Considering the overall evidence, including the post-service medical evidence, the June 2017 VA medical opinion, and the lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater probative value.  In conclusion, the preponderance of the evidence is against the Veteran's claim that she suffers from endometriosis status-post hysterectomy and hemi-oophorectomy, which is related to her military service.  Thus, the benefit-of-the-doubt rule is not applicable to the claim.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54-56.


ORDER

Entitlement to service connection for hypertension is denied.

Entitlement to service connection for endometriosis status-post hysterectomy and hemi-oophorectomy is denied.




____________________________________________
K. CONNER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs