Citation Nr: 18148752 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-45 105 DATE: November 8, 2018 ORDER Entitlement to service connection for vaginal tear/fissure post-childbirth is denied. FINDING OF FACT The Veteran does not have any residuals or a disability as a result of or related to her vaginal tear/fissure post-childbirth. CONCLUSION OF LAW The criteria for entitlement to service connection for vaginal tear/fissure post-childbirth have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1976 to May 1986. She was afforded a hearing before a Decision Review Office (DRO) in July 2017. A transcript is of record. 1. Entitlement to service connection for vaginal tear/fissure post-childbirth Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Alternatively, service connection may be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease; or (b) when a chronic disease is not shown as such during service, by evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Veteran asserts that she is entitled to service connection for a tear/fissure which occurred post-childbirth. Specifically, at her July 2017 DRO hearing, she testified that she endured a vaginal tear because her treating physician did not perform an episiotomy. Initially, the Board acknowledges the Veteran’s service treatment records do record the Veteran gave birth while in active service in 1979, and as a result of that childbirth the Veteran had a second-degree vaginal tear/fissure. A December 2013 VA examination noted the Veteran reported she had a scar from her tear/fissure after childbirth; the examiner did not identify any scar, and found no chronic residuals from the tear/fissure at the time of examination. A January 2018 VA examination recorded the Veteran’s assertion that she had mild pain associated with her vaginal tear and had concerns she might have scar tissue which caused discomfort. The examiner noted the Veteran had experienced endometriosis and had undergone a hysterectomy with oopherectomy; the examiner noted that a scar from the hysterectomy was present, measuring 17 x 0.1centimeters, and which was asymptomatic. The examiner did not identify any scarring from the vaginal tear in service. The examiner opined the Veteran did not have a diagnosis of a chronic gynecological condition which could be service connected. Medical treatment notes reflect no chronic residuals from the Veteran’s vaginal tear/fissure. A VA treatment note dated July 2008 specifically found no evidence of residuals related to the tear/fissure. The Board has reviewed the medical and lay evidence of record, and finds there is no current diagnosis or competent evidence of any residuals or disability as a result of the Veteran’s vaginal tear/fissure post-childbirth except for the Veteran’s assertions of pain. Typically, pain by itself is not considered a disability; however, the Board observes that a new precedential opinion directly impacting this case was issued by the United States Court of Appeals for the Federal Circuit (Court). In Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018), the Court held that a Veteran’s pain must create a functional impairment to establish the presence of a disability. For a successful claim, a Veteran must show that his pain reaches the level of a functional impairment of earning capacity. Id. This case is distinguishable, however, insofar the 2018 VA examination has shown findings that are firmly inconsistent with functional impairment. Here, the January 2018 VA examiner found only mild pain was associated with the vaginal tear/fissure as reported by the Veteran. The examiner specifically found that the Veteran’s gynecological condition did not cause functional impact. The January 2018 examiner’s findings were based on an examination of the Veteran, her reported history, and a claims file review. The Board finds it to have greater probative value than the lay opinion of the Veteran, who lacks medical training and credentials. Further, neither the Veteran nor her representative has alleged any residual pain caused by the vaginal tear/fissure creates a functional impairment, and no objective medical evidence supports that any functional impairment has been created as a result of the Veteran’s vaginal tear/fissure. Although scarring is present near the pelvic area, the January 2018 examiner made clear that the scarring is the result of the surgical procedures involved in the endometriosis and hysterectomy. No examiner has found any scarring as a result of the vaginal tear in service. Put simply, there is no chronic disability process, diagnosed or otherwise, for which service connected compensation is warranted. In light of the finding of no current disability, the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107 (b). THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Peden, Associate Counsel