Citation Nr: 1806254 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 05-03 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for gynecological problems, including miscarriages, irregular menses with excessive bleeding, endometriosis, and fibroid tumors, requiring hysterectomy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel INTRODUCTION The appellant served on active duty in the Marine Corps from June 1969 to June 1989. She is the recipient of the Good Conduct Medal with two stars, the Certificate of Commendation on three occasions, the Letter of Appreciation on five occasions, the Navy Commendation Medal, and the Certificate of Appreciation. This matter comes before the Board of Veterans' Appeals (Board) from June 2003 and February 2004 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This matter was most recently remanded by the Board in September 2012. A Supplemental Statement of the Case (SSOC) was issued in May 2016. As set forth by the Board in its September 2012 remand, this matter relates to exposure to contaminated water at Camp Lejeune, North Carolina. Thus, jurisdiction was transferred to the RO in Louisville, Kentucky. Exposure to such has been conceded as the appellant was stationed at Camp Lejeune from August 1969 to October 1969 and from April 1980 to June 1980. The appellant was afforded a travel Board hearing in May 2007. In a June 2017 letter, the Board advised the appellant that the Veterans Law Judge before whom she had testified in May 2007 was no longer employed by the Board. She was offered the opportunity to attend another hearing before a different Veterans Law Judge, but the appellant did not respond. As noted in the June 2017 letter, absent a response from the appellant in the applicable time period, the Board will presume that she does not want another hearing and proceed accordingly. The RO declined to reopen the previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD) based upon military sexual trauma in a March 2016 rating decision and entitlement to special monthly compensation for the loss of use of a creative organ was denied in an April 2016 rating decision. A Notice of Disagreement (NOD) regarding such decisions was received in May 2016. Generally, the filing of a NOD confers jurisdiction on the Board and the next step is for the Agency of Original Jurisdiction (AOJ) to issue an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). However, because the Board's review of the record reveals that the RO is still taking action on these issues, the Board will not exercise formal jurisdiction over them at this time. FINDING OF FACT The evidence is in relative equipoise as to whether the appellant's gynecological problems (including irregular menses with excessive bleeding, endometriosis, and fibroid tumors) which necessitated a hysterectomy in 1996, were caused by or incurred during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for gynecological problems, status post hysterectomy, have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) Neither the appellant 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). II. Applicable Law Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran is presumed to have been in sound condition when entering service, except as to defects, infirmities, or disorders noted at the time of the examination or where clear and unmistakable evidence demonstrates that the injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C. §§ 1111, 1137. In order to rebut the presumption of soundness, the government must show by clear and unmistakable evidence that (1) a veteran's disability existed prior to service and (2) that the pre-existing disability was not aggravated during service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness by demonstrating with clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition. Wagner, 370 F.3d at 1096; see also Quirin v. Shinseki, 22 Vet. App. at 397. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran." See Gilbert, 1 Vet. App. at 54. III. Background The appellant seeks service connection for gynecological problems including excessive bleeding, irregular menses, miscarriages, endometriosis, and fibroid tumors, which she contends led to a 1996 hysterectomy. The appellant's service treatment records indicate that at a January 1969 military enlistment medical examination, she endorsed a history of irregular menstruation. It was noted that she had undergone a dilation and curettage in November 1968 for menorrhagia. The service treatment records are very difficult to read, but it appears that in light of these findings, she was required to return for a subsequent reevaluation in April 1969. At that time, the examiner noted that the appellant had had three to four months without abnormal bleeding and that pelvic and rectal examinations were normal. The examiner indicated that the appellant's profile was therefore cleared and she was determined to be qualified for service. In-service treatment records corresponding to the appellant's twenty-year period of active duty show multiple episodes of care for gynecological issues, including a July 1980 miscarriage which occurred shortly after a period of active duty at Camp Lejeune from April to June 1980, two dilation and curettage procedures, and a cesarean section birth. During such 1988 cesarean section birth, fibroids were observed. The post-service clinical evidence includes an October 1996 VA hospitalization report showing that the appellant underwent a hysterectomy and bilateral salpingoophorectomy. On admission, it was noted that she had a history of six pregnancies but only one live birth. She had been followed in VA's clinic since 1993 for a history of uterine leiomyomata and urinary incontinence with persistent menorrhagia, dysmenorrhea, and stress incontinence. The hysterectomy was scheduled after a recent history of unsuccessful treatment with Depo-Provera for heavy vaginal bleeding. The discharge diagnoses included symptomatic fibroid uterus and status post vaginal hysterectomy. In connection with her claim, VA obtained a medical opinion in October 2005. The VA clinician opined that the appellant's 1996 hysterectomy was not the result of the in-service dilation and curettage, cesarean section, etc. Rather, he indicated that it was a likely result of fibroids and endometriosis, "both of which are not direct results of the surgeries that she underwent during service. Therefore, I do not feel the hysterectomy is a result of anything during the service." In an August 2006 VA medical opinion, a physician agreed that the appellant's fibroid uterus appeared to be a major contributing factor for her need to undergo a hysterectomy. The clinician indicated, however, that fibroids were not noted during service and typically would have been identified during a Caesarian section. He also noted that fibroids typically became more prominent in the fourth and fifth decades of life. The physician further indicated that the appellant's gynecological problems treated during service all preexisted her active service and were not aggravated beyond the natural progression by such service. A June 2006 private medical opinion from Dr. J.B.L is of record. Dr. J.B.L. reviewed medical records date from 1975 to 2006. The appellant was noted to have been seen for gynecological problems characterized by dysfunctional uterine bleeding, dysmenorrhea, and chronic anemia as early as 1975. It was noted that such were so severe that vaginal hysterectomy, bilateral salpingoophorectomy, and an endoscopic Burch procedure were performed in 1996. She was not menopausal at the time of such surgery. Dr. J.B.L. opined that the appellant's gynecological history met the requirements of 38 C.F.R. § 4.116 and that the appellant's disability was service-connected. An April 2016 VA examiner stated that anovulatory cycles, fibroids, and endometriosis are associated with spontaneous miscarriage, and that uterine fibroids are associated with excessive bleeding. IV. Analysis As set forth above, although reports of irregular menstruation and a recent dilatation and curettage were noted in a January 1969 preenlistment examination, the appellant subsequently underwent reevaluation in April 1969, during which it was recorded that she had had three to four months without abnormal bleeding and that pelvic and rectal examinations were normal upon service entry. According to the examiner's findings, the Board must therefore presume that the appellant's pre-service irregular menstruation resolved without residual disability following the dilatation and curettage and that she was sound at service entry. In other words, absent a finding of disability on service entry, the legal presumption of soundness attaches. Crowe v. Brown, 7 Vet. App. 238 (1994). Thus, the burden of proof would be on VA to rebut the legal presumption of soundness. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in order to rebut the presumption of soundness, the government must show by clear and unmistakable evidence that (1) the disability existed prior to service and (2) that the pre-existing disability was not aggravated during service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); see also VA O.G.C. Prec. Op. No. 3-2003. This burden is a formidable one, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993); see also Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). In this case, Board has considered the August 2006 VA medical opinion discussed above in which the physician concluded that the appellant's irregular bleeding preexisted service. Because he failed to explain his opinion and because he did not indicate that it was clear and unmistakable that the the appellant's gynecological disability preexisted service and was not aggravated during service, the legal presumption of soundness has not been rebutted. Presuming the appellant was sound at entry, based on the service treatment records showing that the appellant was treated for multiple gynecological symptoms in service, the next question for consideration is whether her post-service hysterectomy in 1996 was necessitated by a condition which began in service. In that regard, the Board notes that the VA medical opinions obtained in this case indicate that the appellant's hysterectomy was necessitated by fibroid tumors. Although both examiners concluded that service connection was not warranted as fibroids were not present or observed while on active duty, this opinion was based on an inaccurate factual premise. As set forth above, 1988 service treatment records clearly note that fibroids were observed when the appellant's cesarean section was performed on active duty. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). See also 38 U.S.C. § 5103A(d). This has not escaped the attention of the appellant, who has reported the notation of fibroids during such cesarean section birth on multiple occasions. In light of the foregoing evidence establishing that the appellant was legally sound at entry, that fibroids were identified while on active duty, the August 2006 and April 2016 VA opinions that fibroids were the cause of her hysterectomy, the Board finds that the evidence is in relative equipoise as to whether the appellant's gynecological problems resulting in a hysterectomy were due to her active service. As set forth above, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in her favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Given the evidence set forth above, such a conclusion certainly cannot be made in this case. Under these circumstances, the record is sufficient to award service connection for gynecological problems, including miscarriages, irregular menses with excessive bleeding, endometriosis, and fibroid tumors, status post hysterectomy. ORDER Entitlement to service connection for gynecological problems, including irregular menses with excessive bleeding, endometriosis, and fibroid tumors, resulting in a hysterectomy is granted. ____________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs