Citation Nr: 1756550 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 13-28 823 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a gynecological disorder, to include residuals of a total hysterectomy. 2. Entitlement to service connection for a skin disorder, to include residuals of skin cancer. 3. Entitlement to service connection for a low back disability. 4. Entitlement to service connection for varicose veins of the right leg. 5. Entitlement to service connection for varicose veins of the left leg. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and her spouse ATTORNEY FOR THE BOARD J. George, Associate Counsel INTRODUCTION The Veteran served on verified active duty from November 1983 to August 1992. She also had additional service in the Air Force Reserve. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office. In October 2015, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. In December 2015, the Board dismissed five withdrawn service connection claims. The Board also remanded the remaining five claims for additional development. Except for claim of service connection a skin disorder, the claims before the Board are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDING OF FACT The Veteran's facial and neck scars are residuals of skin cancer the Veteran had while she was on active duty. CONCLUSION OF LAW The criteria for service connection for residuals of skin cancer have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: '(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'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Analysis The Veteran indicates that she served in Tampa, Florida and San Antonio, Texas during service and that she had a lot of sun exposure. She states that she suffered sunburns that blistered, and that she believes the sun exposure caused her skin problems, to include skin cancer. An April 1985 treatment entry noted that the Veteran had blisters of the lips for twelve hours. The assessment was herpes simplex. A subsequent April 1985 entry noted that the Veteran suffered extreme sunburn to the lips, face, and arms during a military field exercise. The assessment was severe herpes simplex labialis. A subsequent July 1992 entry noted that the Veteran had sunburn to the shoulders, back, and neck. As to an assessment, it was noted that sunscreen was discussed. A March 2009 VA general medical examination included diagnoses of skin cancer of the left clavicle area, status post removal with a scar; skin cancer of the legs, status post removal with scars; skin cancer of the face, status post removal with a minimal scar. A March 2016 disability benefits questionnaire (DBQ) completed by her private physician, Dr. Moats, notes prior diagnoses of herpes simplex virus on the lips and skin cancer. The history of the skin cancer was said to be from sun exposure from 1985 to present. A biopsy of a basal cell carcinoma had been completed a few months prior in September 2015 and the Veteran was under on-going observation. Dr. Moats opined that it was at least as likely as not the Veteran's skin cancer was caused by her repeated and continual in-service sunburns. At an August 2016 VA examination, the examiner noted basal cell carcinoma from February 1998 and actinic keratosis from November 2006. The Veteran also reported having basal and squamous cell skin cancer in 1984 treated by multiple resections from her face, neck, nose, left check, arms, legs, and right hand. Small scars of less than one centimeter square in area were noted on the left cheek, right temple, nose, and left side of nose. The Veteran also testified at the Board hearing that she got severely sunburned several times. She reported that her doctor told her that most sun damage occurs before age 25. Given the Veteran's period of service, she was obviously older than 25 when she separate from service. In November 2015, the Veteran also submitted an article explaining the causes of skin cancer. The Board finds Dr. Moats' March 2016 opinion to be adequate to address the claim. Though his opinion is simply stated, he cites the Veteran's reports of sunburn in service for his conclusion that the skin cancer was at least as likely as not related to service. The Veteran is competent to report her in-service sunburns. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The service treatment records also show evidence of sunburn. As sun exposure is widely known to cause skin cancer, Dr. Moats' opinion is accepted as persuasive by the Board and especially probative to the nexus element for this claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The August 2016 examiner stated that there was insufficient documentation to confirm whether a current skin condition was related to service. The Board finds the opinion less persuasive as there is documentation of in-service sunburns and the Veteran has reported experiencing in-service sun exposure even if not documented. Given Dr. Moats' opinion in favor of the claim and the Veteran's consistent testimony as to sunburn during service, the Board finds that the evidence is in favor of the claim, particularly when reasonable doubt is resolved in her favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service connection for residuals of skin cancer is granted. ORDER Service connection for residuals of skin cancer is granted. REMAND Low Back A February 1988 treatment entry noted that the Veteran complained of back pain and dysuria. A treatment entry, dated in January 1991, noted that the Veteran fell during a military exercise two days earlier. The Veteran reported that she had pain in her low back for two days after pulling on a weapon during an exercise in the field. The assessment was low back pain, possible back strain. The Veteran was afforded a VA contract examination of her low back in March 2009. The examiner identified a lumbar disc condition which was said to have existed since January 2004 that caused stiffness and pain in the region with pain traveling to the hips and buttocks. The diagnosis was degenerative arthritis of the lumbosacral spine, post status laminectomy. In August 2016, the Veteran was afforded a VA examination of her low back. Degenerative arthritis was diagnosed with a date of diagnosis noted as March 2004. The examiner noted that the Veteran injured her back by rolling over the top of an M-16 and falling during service resulting in back pain and possible strain. This was treated with heat, cold packs, and Motrin. By 2003, the Veteran reported that her back began bothering her on a regular basis, she started to get numb patches in her legs, and she had no urge to urinate even though she had a full bladder. After consultation with a specialist she had lower lumbar surgery in 2004. The examiner opined that the Veteran's in-service injury was less likely than not related to service. He noted that the acute injury during service did not progress to a chronic condition as there are no further evaluations to suggest a chronic low back condition until 2004, when the Veteran was noted to have a herniated lumbar disc which resulted in surgery. At the Board hearing, the Veteran testified that her back injury during service was the only injury she has ever had. After the injury, the Veteran states that she seemed to recover fine, but "now and then" she would "hitch in the back." Hearing Transcript at 13. Eventually, the Veteran began feeling burning down her leg. She states that she did not understand this pain and went to the doctor when she began feeling numb from her knees to her belly button. In September 2016 correspondence, the Veteran reveals that she never felt the same after her fall and was told by a doctor that she would probably hold stress in the location of the injury. The opinions of record ignore the Veteran's testimony and lay statements as to the continuity of her symptoms. Further, the examiners ignore that the extent of her current problems were discovered in 2004, but in reality may have existed for a significant time prior to medical diagnosis. Thus, the Board finds that a new VA examination and medical opinion is warranted. Varicose Veins In August 2016, the Veteran was afforded a VA examination of her varicose veins. The examiner opined that the Veteran's varicose veins were less likely than not related to service as there was insufficient documentation during service of varicose veins. Instead, the examiner stated that varicose veins were likely due to age related changes and being overweight. The Board does not find the medical opinion adequate as it is premised solely on lack of documentation during service. The Veteran has included a detailed description on onset during service. In her September 2016 correspondence, she notes that pregnancy and stating or sitting for long periods can cause varicose veins. The Veteran was pregnant while on active duty and worked in an operating room which required her to stand for long periods of time. With regard to the left leg, the Veteran notes that during service, she felt a burning sensation that did not subside and, after finishing work for the day, noticed a large bruise forming. By the next day the bruise was six inches long. The marking did not go away. Thus, the Board finds that a new VA examination and medical opinion is warranted. Gynecological Disorder A February 1986 emergency care and treatment report noted that the Veteran found vaginal bleeding when she woke up that morning. It was noted that the Veteran was supposed to be thirteen weeks pregnant, but that a sonogram showed no fetal activity. The assessment was a threatened abortion. A February 1986 hospital admission report related an impression of an incomplete abortion. It was noted that the Veteran underwent suction dilation and curettage with no sequela. A June 1986 treatment entry indicated that a Pap smear result showed Class II squamous atypia and degeneration. The Veteran had a successful pregnancy in 1989. A February 1990 operation report noted that the Veteran underwent a laparoscopic tubal ligation by a Falope ring. The postoperative diagnosis was sterilization. A March 1990 entry related an assessment of monilial vaginitis. A June 1992 treatment entry related an assessment of rule out a sexual transmitted disease, rule out fibroids, and rule out an ovarian cyst. A July 1992 entry indicated that the Veteran was seen for a painful cyst on the left shoulder. The assessment was an inclusion cyst. The Veteran was diagnosed with uterine fibroids with dysfunctional uterine bleed in 2005 for which she underwent a total abdominal hysterectomy in 2007. In November 2015, she submitted correspondence and literature regarding the effects of ethylene oxide. In March 2016, the Veteran's private physician completed a DBQ. The physician noted the terminated pregnancy, uterine fibroids, menopausal symptoms, and hormone replacement therapy. Under relevant medical history, the physician noted exposure to ethylene oxide during the first trimester of a miscarried pregnancy that required dilation and curettage (D&C) to extract the fetus. The physician also noted the Veteran's hysterectomy and incontinence most likely caused by lack of hormones. While the physician stated that the Veteran's miscarriage was likely due to her exposure to anesthetic gases and environmental hazards, he did not connect the Veteran's subsequent hysterectomy to service. The Veteran was afforded a VA examination in August 2016. The Veteran noted that she was pregnant in 1986 when she worked as a surgical technician around harmful gases while sterilizing equipment. Her gynecologist recommended that she be removed from the operating room during the first trimester, but, as reported she was not. The Veteran lost her pregnancy a few weeks into her second trimester. The August 2016 examiner opined that the Veteran's gynecological conditions during service were not related to her uterine fibroids with dysfunctional uterine bleed that required her to undergo a hysterectomy. The examiner noted that no records subsequent to 2007 show complications, but the Veteran continues on hormone replacement therapy. In September 2016 correspondence, the Veteran stated that after the D&C during service, her cycles lasted longer and she bled more heavily. The Board cannot accept the March 2016 physician's or the August 2016 examiner's opinion. The relevant question for purposes of service connection is whether her gynecological problems during service led to a current disability, such as the removal of her uterus or ovaries. See 38 C.F.R. § 4.116, Diagnostic Codes 7618, 7619 (providing for total ratings for the three months after removal of the uterus or ovaries and for residual ratings thereafter). Neither opinion addressed this inquiry. As a result, the Board finds that a new VA examination and medical opinion is warranted. The examiner should also consider the relevant literature that the Veteran has submitted. Accordingly, these issues are REMANDED for the following actions: 1. Schedule the Veteran for appropriate VA examinations and for medical opinions as to the etiology of the Veteran's lumbosacral arthritis, varicose veins, and hysterectomy. After reviewing the entire claims file, the examiner(s) should opine as to the following: (A) Is it at least as likely as not (50 percent or greater probability) that the Veteran's lumbosacral arthritis related to service, to include on the basis of continuity of symptomatology? The examiner should note the Veteran's reports of having back pain and escalating neurological symptoms prior to her back surgery in March 2004. (B) Is it at least as likely as not (50 percent probability or greater) that the Veteran's varicose veins related to service? The examiner should discuss whether the Veteran's pregnancy during service and long hours standing in the operating room as a nurse may be related to the varicose veins. (C) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current gynecological condition, to include her hysterectomy, is related to service? The examiner should note the Veteran underwent a miscarriage that required C&D during service. The Veteran reports that after the C&D her cycle was never the same-heavier bleeding for a longer period of time. The examiner(s) should provide complete rationale for any opinion(s) given and consider the relevant lay statements of record. Any literature in the claims file regarding the conditions for which the Veteran is seeking service connection should be considered as well. 2. Finally, readjudicate the issues remaining on appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. §§ 5109B, 7112 (2012). ______________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs