Citation Nr: 1756908 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 09-47 955 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an increased (compensable) rating for a left total salpingectomy with retention of ovary, status post tubal pregnancy, with right corneal ectopic pregnancy status post corneal resection. 2. Entitlement to service connection for a heart disorder, including as secondary to service-connected left total salpingectomy. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David Nelson, Counsel INTRODUCTION The Veteran served on active duty from December 1979 to December 1983. These matters come before the Board of Veterans Appeals (Board) on appeal from December 2008 and August 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. This case was previously before the Board in August 2014. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) system. The LCM contains documents that are either duplicative of the evidence in VBMS or not relevant to the issue on appeal. FINDINGS OF FACT 1. A heart disorder did not have onset during active service, was not caused by active service, and was not caused or aggravated by service-connected disability. 2. The Veteran's left total salpingectomy does not require continuous treatment and the associated surgical scar is not painful or unstable. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart disorder have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2015); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. The criteria for an increased (compensable) rating for a left total salpingectomy with retention of ovary, status post tubal pregnancy, with right corneal ectopic pregnancy status post corneal resection have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.116, 4.118, Diagnostic Codes 7613, 7614, 7804 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist 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 offered testimony before the undersigned Veterans Law Judge at a Board hearing in August 2013. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103(c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. The Board also finds that there has been compliance with the prior remand directives of August 2014. See Stegall v. West, 11 Vet. App. 268 (1998). VA's duties to notify and assist are met, and the Board will address the merits of the claims. I. Service connection Laws and regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2017). 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Secondary service connection may be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439 (1995). VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Analysis At the August 2013 Board hearing the Veteran essentially asserted that she believed that problems with her menstrual cycle was impacting her heart. She also stated that she felt she had an increased heart rate during service. The Veteran is currently service-connected for a left total salpingectomy with retention of ovary, status post tubal pregnancy, with right corneal ectopic pregnancy status post corneal resection. The Veteran denied that she had any heart problems on her November 1979 service entrance Medical History Report. [V8/19/14, STR photocopy, first one, page 46]. The Veteran's service treatment records (STRs), including the entrance and separation examinations, contain no findings of any heart abnormality. In December 2012 the Veteran underwent a VA heart examination. [V2/12/13, c and p exam] The examiner diagnosed supraventricular arrhythmia and opined that it was less likely than not due to the Veteran's service-connected disorder. As a rationale, the examiner stated that "there is no correlation between the two conditions. There is no physiological reason that a salpingectomy would cause SVT." The examiner did not provide an opinion on whether the Veteran's heart disorder was due directly to service or whether her gynecological disorder(s) aggravate her heart condition. In her March 2013 substantive appeal [V3/20/13, VA9] the Veteran said that she had a heart problem prior to service that was aggravated by extensive physical training and general duties as a Marine. In March 2016 a VA medical opinion was obtained. [V3/7/16] The examiner indicated that the Veteran's heart disability was not likely related to her military service, noting that no such disorder had been diagnosed until many years following service. The March 2016 VA opinion also stated that her heart condition was not due to or the result of her gynecological disability as there was no logical causal relationship between the disorders. The opinion noted that Supraventricular tachycardia (SVT) was condition caused by a disturbance in the conduction of the electrical activity in the heart muscle. There were two common types of supraventricular tachycardia-atrioventricular reciprocating tachycardia (AVRT) and atrioventricular nodal reentrant tachycardia (AVNRT) that were caused by an abnormal electrical pathway in the heart and often occurred in people who do not have any other type of heart disease. The cause of the abnormal pathway might not be clear. The March 2016 VA opinion noted, in pertinent part, as follows: The veteran's SC MDD and left total salpingectomy with retention of ovary status post tubal pregnancy would NOT be conditions that would have a causal effect on SVT. It was noted on a cardiology consult of 9/25/07 that a "relationship to previous menses has been noted. This may be just because of volume increase that occurs premenstrually." This is simply normal physiology-most all women have an increase in fluid volume just before periods. This would not have any causal or aggravation relationship to the history of SC left total salpingectomy with retention of ovary status post tubal pregnancy. The Board finds that service connection for a heart disorder is not warranted. First, while there is a current diagnosis of a heart disorder, there are no findings of a chronic condition during service, and there is no diagnosis within one year of service. Thus, service connection cannot be presumed on either basis. Further, all the medical opinions have indicated that the Veteran's heart disorder was not caused or aggravated by her service-connected gynecological disability. The Board finds that the December 2012 and March 2016 VA opinions are of great probative value. The opinion reports contain a comprehensive review of the Veteran's medical records and also had a well-reasoned rationale for the opinions provided, including multiple references to pertinent medical literature. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting the central issue in determining probative value is whether the examiner was informed of the relevant facts in rendering a medical opinion). The March 2016 VA opinion made references to the Veteran's medical records, and specifically discussed why the contents of a September 2007 private treatment record were not favorable to the Veteran's claim. The opinions noted the Veteran's assertions and lay statements. Accordingly, the opinions are assigned significant probative value. The Board further observes that there are no contrary medical opinions of record. The Veteran's assertions that her heart condition was present in service or is secondary to her service-connected gynecological disorder have been considered. The record does not demonstrate that the Veteran has any special training or acquired any medical expertise in diagnosing or assessing the causation of heart disorders and her opinion is of no probative value. Heart disorders are complex internal conditions, as opposed to a disorder that is capable of lay observation such as ringing in the ears or varicose veins. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) (holding that varicose veins are capable of lay observation and thus lay testimony may serve to establish a diagnosis); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation). Moreover, any such opinion is outweighed by the probative medical evidence of record. Therefore, the Board finds that the Veteran's opinions in this regard are not competent evidence and is regardless outweighed by the VA specific and reasoned opinions. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). II. Increased rating Laws and regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2017). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). Analysis As a preliminary matter, the Board observes that prior to the August 2014 Board remand the Veteran's gynecological disorder was characterized as left total salpingectomy with retention of ovary, status post tubal pregnancy. Due to actions taken in a September 2017 RO decision (in accordance with the Board's remand instructions and based on a July 2017 VA examiner's addendum opinion indicating that the Veteran underwent a "right corneal resection" during service), the service-connected disability is now characterized as left total salpingectomy with retention of ovary, status post tubal pregnancy, with right corneal ectopic pregnancy status post corneal resection and is evaluated as noncompensable under Diagnostic Codes (DCs) 7613 and 7614. The Veteran also receives special monthly compensation under 38 U.S.C. § 1114, subsection (k) and 38 CFR § 3.350(a) on account of anatomical loss of a creative organ. Uterine fibroids are rated under DC 7613 (uterus, disease, injuries, or adhesions of). This diagnostic code provides that a zero percent disability rating is warranted for symptoms that do not require continuous treatment. A 10 percent rating is assignable for symptoms that require continuous treatment. A 30 percent rating, the maximum available under DC 7613, is assignable for symptoms not controlled by continuous treatment. 38 C.F.R. § 4.116, DC 7613 (2017). DC 7614, for disease, injury, or adhesions of the fallopian tube, is rated pursuant to the General Rating Formula for Female Reproductive Organs (General Rating Formula). Under these criteria, a noncompensable rating is assigned for symptoms that do not require continuous treatment. A 10 percent rating is assigned for symptoms that require continuous treatment, and a 30 percent rating is assigned for symptoms not controlled by continuous treatment. 38 C.F.R. § 4.116, DC 7614 (2017). At her Board hearing the Veteran indicated that she had pain that would go "off and on." She indicated that it was not all the time but was chronic. At a February 2017 VA gynecological examination, diagnoses of ectopic pregnancy status post left salpingectomy with retention of ovary (1981) and right corneal ectopic pregnancy status post corneal resection (1981) were reported. It was noted that following her discharge from military service the Veteran had an uneventful gynecologic history with no further formal evaluations, treatments, or procedures. The Veteran reported occasional cramping and abdominal pain noted to be mild and intermittent. The examiner indicated that the Veteran did not currently require treatment or medications for symptoms related to her reproductive tract conditions. It was further noted that the Veteran had never had a hysterectomy. The Veteran had a surgical scar related to her service-connected condition that was not painful, unstable, or having a total area equal to or greater than 39 square cm. The scar was located on the vertical lower abdomen and measured 19 cm length X width of 0.1 cm. The Board finds that the Veteran's service-connected gynecological disability is not manifest to a compensable degree. No ongoing symptoms requiring continuous treatment have been shown, and such is consistent with the current noncompensable rating under DC 7613 and 7614. The Board has also considered whether a compensable rating is warranted for the Veteran's scar. DC 7802 provides for a 10 percent disability evaluation for a scar not of the head, face, or neck, that is superficial and nonlinear and which covers an area of at least 144 square inches (929 sq. cm.) or more. A superficial scar is one not associated with underlying soft tissue damage. DC 7804 provides for a 10 percent evaluation for one or two scars that are unstable or painful. An unstable scar is one where there is frequent loss of skin covering over the scar. Pursuant to DC 7805, a scar may be rated on any disabling effect(s) not considered as part of DCs 7801-7804 under an appropriate diagnostic code. The Veteran's lower abdomen scar is not painful or unstable, and did not cover a total area greater than six square inches. As such, there is no basis for a compensable rating for this scar under 38 C.F.R. § 4.118 DC's 7801-7805. The Board finds that there is not such an approximate balance of the positive evidence and the negative evidence to permit an even more favorable determination. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER A compensable rating for a left total salpingectomy with retention of ovary, status post tubal pregnancy, with right corneal ectopic pregnancy status post corneal resection is denied. Service connection for a heart disorder, including as secondary to service-connected left total salpingectomy, is denied. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs