Citation Nr: 1808326 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 09-48 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for residuals of total abdominal hysterectomy with bilateral salpingo-oophorectomy. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1984 to April 1988 and from April 1990 to August 2000, with additional service in the United States Navy Reserve until January 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction has since transferred to the RO in Columbia, South Carolina. This issue was remanded by the Board for further development in March 2011, November 2012, November 2013, July 2015, and May 2017. It has since been returned to the Board for appellate review. FINDING OF FACT The Veteran's total abdominal hysterectomy with bilateral salpingo-oophorectomy was performed due to uterine fibroids and left ovarian cyst, neither of which has been shown to have arisen during or be related to cervical dysplasia or mental stress from during her active duty service. CONCLUSION OF LAW Service connection for residuals of total abdominal hysterectomy with bilateral salpingo-oophorectomy were not incurred in service. 38 U.S.C. §§ 101, 1110, 1131, 1153, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.306. 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). As defined by statute and regulation, active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21), (24) (2012); 38 C.F.R. § 3.6(a), (d). ACDUTRA includes full-time duty performed for training purposes by members of the Reserves or National Guard of any state. 38 U.S.C. §§ 101(22), 316, 502, 503, 504, 505; 38 C.F.R. § 3.6(c)(3). Presumptive periods do not apply to ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101(24), 106. To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The Veteran contends that her hysterectomy is related to her gynecological problems and treatment received during service, as well as irregular uterine bleeding caused by significant psychiatric stress experienced during active duty. The service treatment records reflect complaints and treatment of genitourinary symptoms and disorders including the following: several Pap smears and a colposcopy demonstrating cervical dysplasia; being seen for vaginal discharge, itch, irritation and a urinary tract infection; complaints of hematuria (blood in the urine) and groin pain; and bleeding or spotting between periods on occasion. A December 1990 record indicates that a Pap smear showed mild dysplasia, condylomata, acute and chronic cervicitis, and marked squamous cells. The Veteran underwent laser surgery of the cervix in 1991, with subsequent Pap smears coming back negative. On Pap smear questionnaires in July 1993 and December 1998, she selected "no" to whether she had experienced overly heavy or prolonged periods. A Report of Medical Examination notes that due to a high risk pregnancy, she should remain on active duty until delivery. In a separation Report of Medical Examination in August 2000, it was noted that she had been treated for term pregnancy during service, with a physician noting on the report of medical history that the Veteran had a history of chronic cervical dysplasia. The Veteran separated from active duty in August 2000, and reportedly served in the Navy Reserve until January 2006. An August 2006 private history and physical record reflects that she had a sonogram in July 2006 that showed symptomatic uterine leiomyomas and an enlarged left ovary with two nodules and with debris filled cysts. An endometrial biopsy was noted to have revealed benign proliferative endometrium. She reported symptoms of low abdominal pain and abnormal uterine bleeding, reporting that the irregular bleeding had been going on for months. Her Pap smear of April 2006 was normal. An August 2006 operative report from the private hospital indicates that the Veteran underwent a total abdominal hysterectomy with bilateral salpingo-oophorectomy, and includes pre- and postoperative diagnoses of symptomatic uterine leiomyoma, enlarged left ovary with cysts, pelvic pain, abnormal uterine bleeding, and family history of ovarian cancer. In an August 2008 VA examination, the Veteran asserted that her hysterectomy was related to her gynecological problems during service. The examination report notes a history of June 1985 Pap smear and colposcopy revealing mild to moderate cervical dysplasia and a December 1990 cervical biopsy with findings revealing mild dysplasia, condyloma, acute and chronic cervicitis, and marked squamous metaplasia, with laser vaporization of the cervix in January 1991. She reported a history of heavy bleeding for which she underwent a gynecological workup showing an "enlarged uterus," followed by a total hysterectomy in August 2006. She also reported having a history of gynecological problems since service to the examiner. The examiner diagnosed cervical dysplasia while in service status post laser vaporization with subsequent normal Pap smears and status post total abdominal hysterectomy with bilateral salpingo-oophorectomy, not due to #1. The examiner opined that the Veteran's hysterectomy was neither caused by nor related to her in-service treatment for cervical dysplasia, reasoning that cervical dysplasia was not a disease or injury but rather a cellular abnormality of the cervix revealed by a Pap smear. She noted that after undergoing laser vaporization of the cervix in 1991, the Veteran's subsequent Paps were normal. The examiner further stated that while there was evidence showing treatment for cervical dysplasia in the service treatment records, no chronic disability related to the dysplasia was shown in service, and indicated that review of the medical records failed to demonstrate objective evidence of uterine leiomyoma or other defect or diagnosis of a chronic gynecological disease or condition while in active service or near-in-time to the Veteran's separation from service. She concluded that there was no objective data to support a claim that the pre-operatives diagnoses listed on the August 2006 operative report had their onset during active duty. In a June 2013 VA examination, the examiner noted that the Veteran underwent a total abdominal hysterectomy and bilateral salpingo-oophorectomy in 2006 due to uterine fibroids and left ovarian cyst, abnormal bleeding and pelvic pain, with no problems since surgery. The examiner remarked that the hysterectomy was post-active duty, while in the Reserve; however, by the Veteran's own report, she was only in the Reserve until January 2006, while her hysterectomy was in August 2006. Therefore, the surgery was undertaken post-Reserve duty and there is no indication that she was on ACDUTRA or INACDUTRA at the time. The Veteran was provided with an additional VA examination in May 2016 to address her contention that psychiatric stress caused the disorders requiring the hysterectomy. The examiner found that the gynecological disorders were less likely than not related to stress in service. The examiner reasoned that the review of the Veteran's medical records and examination showed that the Veteran underwent the hysterectomy and bilateral salpingo-oophorectomy in 2006 due to uterine fibroids and left ovarian cyst, and that review of medical literature does not support a causal relationship between stress and the development of such disorders; and therefore, it is less likely as not that the Veteran's hysterectomy was due to the stress she reported having in service. The examiner also addressed the Veteran's contention that she experienced abnormal uterine bleeding during service, but noted that there was no evidence of that. The examiner remarked that the Veteran's records show treatment for cervical dysplasia and several vaginal infections, but that there was no documented medical evidence of severe uterine bleeding during service. She also noted that review of medical literature does not show a causal effect of psychiatric stress on severe menstrual bleeding. A final VA supplemental medical opinion was provided in July 2017 in which a VA clinician stated that based on a review of the medical records, the causes of uterine bleeding and its aggravators are well known, and that on review of medical literature, a psychiatric condition is not a known cause. Due to this, the uterine bleeding was less likely than not caused or aggravated beyond its natural progression by psychiatric stress in service. The clinician cited to the medical references he utilized in reaching the stated opinion. Based on the above, the medical evidence weighs against the claim. While it is undebatable that the Veteran underwent a total hysterectomy, the evidence shows that the surgery was performed in August 2006, after she separated from active duty, and there is nothing to indicate that the initial diagnosis of uterine fibroids and ovarian cyst and/or subsequent surgery took place prior to her separation from the Navy Reserve. The Board has considered the Veteran's lay statements that she was diagnosed with fibroids before she separated from active duty. While the service treatment records document that she was treated as a high risk pregnancy, which she carried to term, there is no indication that uterine fibroids were observed or diagnosed at that time. She also asserted that the incredible stress during service led to her disorders. The credibility of her statement concerning heavy bleeding during service is lessened by the contemporaneous evidence of record, specifically including notations made by the Veteran on regular Pap smear questionnaires where she denied experiencing prolonged or heavy bleeding, and a statement made to the private hospital in August 2006 shortly before her hysterectomy that she had been having irregular uterine bleeding "going on for months," rather than years. The Board places more probative weight on her earlier statements as they are less likely to have been influenced by the passage of time and faultiness of memory, and are therefore more persuasive. Moreover, she has not been shown to possess the requisite medical training or knowledge to competently medically attribute the post-service uterine and ovarian disorders to her in-service cervical dysplasia or psychological stress. As no competent evidence contrary to the conclusions of the medical examiners has been presented, a preponderance of the competent and credible evidence is found to weigh against a finding that the Veteran's uterine fibroids and/or ovarian cyst and residuals of total abdominal hysterectomy with bilateral salpingo-oophorectomy arose during or are related to her active service. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the competent, probative evidence is against the claim, that doctrine is not applicable and the appeal is denied. Finally, VA has met all statutory and regulatory notice and duty to assist provisions and the Veteran has not asserted otherwise. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). ORDER Service connection for residuals of total abdominal hysterectomy with bilateral salpingo-oophorectomy is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs