Citation Nr: 18153617 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-31 549 DATE: November 28, 2018 ORDER Request to reopen the finally disallowed claim of service connection for hysterectomy and bilateral salpingo oophorectomy is granted. Entitlement to service connection for hysterectomy and bilateral salpingo oophorectomy, to include as secondary to cervical squamous cell dysplasia and condylomatous atypia with residual carcinoma in situ, status post simple partial vulvectomy, is denied. FINDINGS OF FACT 1. Service connection for hysterectomy and bilateral salpingo-oophorectomy was denied by the Regional Office (RO) in a February 2002 rating decision, which was not appealed and then became final. 2. Evidence received since the February 2002 rating decision is new, relates to an unestablished fact, and raises a reasonably possibility of substantiating the claim of entitlement to service connection for hysterectomy and bilateral salpingo oophorectomy. 3. The preponderance of the evidence is against finding that the Veteran’s hysterectomy and bilateral salpingo oophorectomy, to include as secondary to cervical squamous cell dysplasia and condylomatous atypia with residual carcinoma in situ, status post simple partial vulvectomy, was incurred in, proximately due to, or otherwise related to service. CONCLUSIONS OF LAW 1. The February 2002 rating decision is final as to the claim of entitlement to service connection for hysterectomy and bilateral salpingo oophorectomy. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2018). 2. The criteria for reopening the claim of entitlement to service connection for a hysterectomy and bilateral salpingo oophorectomy have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). 3. The criteria for service connection for hysterectomy and bilateral salpingo oophorectomy, to include as secondary to cervical squamous cell dysplasia and condylomatous atypia with residual carcinoma in situ, status post simple partial vulvectomy, are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1983 to May 1986. This appeal to the Board of Veterans’ Appeals (Board) arose from a May 2014 rating decision issued by the Department of Veterans Affairs (VA). See June 2014 Notice of Disagreement (NOD); May 2016 Statement of the Case (SOC); June 2016 Substantive Appeal (VA Form 9). The Board acknowledges that additional private and VA treatment evidence has been received since the May 2016 SOC, but that the evidence is either duplicative or not pertinent to the claim of to service connection for hysterectomy and bilateral salpingo oophorectomy. New and Material Evidence The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision-makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. For the limited purpose of evaluating whether evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 511 (1992). Service connection for the Veteran’s hysterectomy and bilateral salpingo oophorectomy was previously denied by the RO in a February 2002 rating decision. Specifically, the RO found that the evidence does not establish any relationship between the Veteran’s 1994 hysterectomy and bilateral salpingo oophorectomy and complaints of pelvic pain showing during service. New and material evidence was not received within a year of that rating decision, the Veteran did not file a timely appeal. The February 2002 rating decision, therefore, became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Since the February 2002 rating decision, new and material evidence has been added to the claims file. This evidence includes the Veteran’s lay statements that her hysterectomy and bilateral salpingo oophorectomy is secondary to her service connected cervical squamous cell dysplasia and condylomatous atypia with residual carcinoma in situ, status post simple partial vulvectomy. See February 2014 VA Form 526EZ; February 2014 VA Form 21-4138. In addition, the Veteran submitted a private medical opinion that indicates her hysterectomy and bilateral salpingo oophorectomy was treatment for pelvic prolapse and pain that often results from trauma at childbirth and a consequence of longstanding heavy lifting or exertion. January 2014 private treatment record. Service treatment records show the Veteran gave birth during service in August 1985. As the Veteran’s lay statements and the private medical opinion were not part of the record at the time of the February 2002 rating decision, they are new. As the Veteran’s lay statement and private medical opinion tend to indicate a link between the Veteran’s hysterectomy and bilateral salpingo oophorectomy to her service, they are material. Accordingly, presuming the credibility of this evidence, new and material evidence has been received. The claim of entitlement to service connection for hysterectomy and bilateral salpingo oophorectomy is reopened. 38 C.F.R. § 3.159(a). Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection is established when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for hysterectomy and bilateral salpingo oophorectomy, to include as secondary to cervical squamous cell dysplasia and condylomatous atypia with residual carcinoma in situ, status post simple partial vulvectomy. The Veteran asserts that her hysterectomy and bilateral salpingo oophorectomy is secondary to her service connected cervical squamous cell dysplasia and condylomatous atypia with residual carcinoma in situ, status post simple partial vulvectomy. See February 2014 VA Form 526EZ; February 2014 VA Form 21-4138. The Veteran also asserts that her hysterectomy and bilateral salpingo oophorectomy is due to multiple gynecological conditions. See June 2014 Notice of Disagreement (NOD); June 2016 Substantive Appeal (VA Form 9). The Board finds that the Veteran’s residuals from her 1994 hysterectomy and bilateral salpingo oophorectomy is a current disability. See May 2014 VA examination. The Board finds that the Veteran has a service connected disability of cervical squamous cell dysplasia and condylomatous atypia with residual carcinoma in situ, status post simple partial vulvectomy, but that she has no other service connected gynecological condition. See May 2014 Rating decision codesheet. The Board also finds that the Veteran had multiple gynecological conditions and treatment for pelvic pain during service. See September 1982, August 1984, and October 1985 Service treatment records. The question left for the Board is whether there is a medical link, or nexus, between the Veteran’s residuals from her 1994 hysterectomy and bilateral salpingo oophorectomy and service, including as secondary to her service connected disability of cervical squamous cell dysplasia and condylomatous atypia with residual carcinoma in situ, status post simple partial vulvectomy. The Board finds that the preponderance of the evidence is against finding a medical nexus to a service connected disability or directly to service. While the Veteran is competent to report having experienced pelvic pain symptoms during service and prior to her 1994 hysterectomy and bilateral salpingo oophorectomy, the causation of the symptoms that led to her 1994 hysterectomy and bilateral salpingo oophorectomy falls outside of the realm of knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, supra. Although the Veteran is competent to describe the symptoms and onset, the statements regarding the condition’s etiology are of limited probative value because this determination involves a complex medical question. Id. For instance, while the Veteran asserts that her cervical carcinoma is related to her 1994 hysterectomy and bilateral salpingo oophorectomy, the evidence shows that the first sign of squamous carcinoma was in an October 2008 dermatology visit, more than 10 years after her hysterectomy and bilateral salpingo oophorectomy. See November 2008 VA treatment records. Instead, probative weight is given to the medical opinion evidence in finding that the Veteran’s hysterectomy and bilateral salpingo oophorectomy is not related to service, including as proximately due to or the result of her service connected disability of cervical squamous cell dysplasia and condylomatous atypia with residual carcinoma in situ, status post simple partial vulvectomy. The May 2014 VA examiner opined that it is less likely than not that the Veteran’s fallopian tube removal via hysterectomy and bilateral salpingo oophorectomy is proximately due to or the result of her service connected disability of cervical squamous cell dysplasia and condylomatous atypia with residual carcinoma in situ, status post simple partial vulvectomy. See May 2014 VA examination. The VA examiner’s rationale is that no information in the Veteran’s records indicate she had cervical squamous cell dysplasia or condylomatous atypia or carcinoma in situ when she had her hysterectomy and bilateral salpingo oophorectomy. Id. In addition, the VA examiner noted that the available records indicate the hysterectomy was for a prolapsing uterus, heavy painful menses, and possible endometriosis. The May 2014 VA examiner’s opinion is consistent with the January 2014 private medical opinion from F.R.U., M.D. In that opinion, Dr. F.R.U. indicated that his review of the evidence showed the Veteran’s 1994 hysterectomy and bilateral salpingo oophorectomy was for treatment of uterine prolapse and pain. See January 2014 Private treatment record. This opinion supports that the Veteran’s hysterectomy and bilateral salpingo oophorectomy is not proximately due to or the result of her service connected disability of cervical squamous cell dysplasia and condylomatous atypia with residual carcinoma in situ, status post simple partial vulvectomy, but to another disorder. Taken together, the opinions from the May 2014 VA examiner and Dr. F.R.U. are probative against finding that the Veteran’s hysterectomy and bilateral salpingo oophorectomy are proximately due to or the result of her service connected disability of cervical squamous cell dysplasia and condylomatous atypia with residual carcinoma in situ, status post simple partial vulvectomy. They are medical professionals who reviewed the claims file and are qualified to determine the cause of the symptoms that resulted in the Veteran’s hysterectomy and bilateral salpingo oophorectomy. The Board also finds that the evidence is against finding the Veteran’s hysterectomy and bilateral salpingo oophorectomy are directly related to service. Instead, the evidence shows that her hysterectomy and bilateral salpingo oophorectomy were due to uterus prolapse, which was not incurred in or otherwise related to service. The December 2000 VA examiner opinioned that it is less than likely that the Veteran’s pelvic pain experienced while in the military is clearly related to the reason for her hysterectomy and bilateral salpingo oophorectomy. See December 2000 VA examination. The December 2000 VA examiner reasoned that there is no chain of evidence linking the in service pelvic pain to the pelvic pain that necessitated the Veteran’s 1994 hysterectomy. As discussed above, Dr. F.R.U. opined that his review of the evidence shows that the Veteran’s hysterectomy and bilateral salpingo oophorectomy were to treat uterine prolapse and pain. Dr. F.R.U. opined that the cause of pelvic prolapse most often results from trauma at childbirth, but can also be from longstanding heavy lifting or exertion. See January 2014 Private treatment record. There is no evidence that the Veteran complained of longstanding heavy lifting or exertion during service. Service treatment records show that the Veteran gave birth to her first child during service, but postpartum check up notes indicate a normal size uterus and that she denied having pain. See August 1985 and September 1985 Service treatment records. Her first childbirth was also almost a decade prior to her 1994 hysterectomy and bilateral salpingo oophorectomy. In addition, the evidence shows the Veteran gave birth to a second child in April 1988, after she separated from service and prior to her hysterectomy and bilateral salpingo oophorectomy. December 1989 Birth Certificate copy. VA treatment records also show the Veteran related a history of chronic problems since her second daughter’s birth. See February 2010 VA treatment record. The opinions from the December 2000 VA examiner and Dr. F.R.U., and the medical evidence, support that the Veteran’s hysterectomy and bilateral salpingo oophorectomy were to treat pelvic pain from uterine prolapse, which was not incurred in or otherwise related to service. The Board also considered the opinions from J.H., CNP/PA-C. In March 2000, Ms. J.H. opined that the Veteran’s hysterectomy and bilateral salpingo oophorectomy were to treat endometriosis. See March 2000 private treatment record. In regard, Ms. J.H. indicates that the Veteran was seen during service for “probable” endometriosis and then referred to a gynecologist, but the subsequently dated service treatment records reflect no actual in service diagnosis for endometriosis and thus fails to show a medical link to the Veteran’s service. Id. For this reason, the Board gives little probative weight to the opinion. Based on the evidence discussed above, the Board finds that the preponderance of the evidence is against finding the Veteran’s hysterectomy and bilateral salpingo oophorectomy is proximately due to or the result of her service connected disability of cervical squamous cell dysplasia and condylomatous atypia with residual carcinoma in situ, status post simple partial vulvectomy, or was incurred in or otherwise related to her service. In reaching the conclusions above, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Lin, Associate Counsel