Citation Nr: 1817132	
Decision Date: 03/19/18    Archive Date: 03/30/18

DOCKET NO.  12-07 424	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to service connection for gynecological disorders due to military sexual trauma.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

T. Jiggetts, Associate Counsel





INTRODUCTION

The Veteran served on active duty from March 1985 to April 1989.

This case comes before the Board of Veteran's Appeals (Board) on appeal from a September 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.  The Veteran timely appealed.

In September 2016, the case initially came before the Board, and the Board remanded for additional development.  In relevant part, the RO was ordered to obtain any outstanding treatment records and VA examinations for gynecological disorders.  Said development was completed, and the RO issued a supplemental statement of the case in September 2017. The case has been returned to the Board for further adjudication.


FINDINGS OF FACT

1.  The Veteran's vaginal infections, pelvic inflammatory disease, tubal occlusion, pelvic adhesions, and rectoceles were incurred as a result of her military service.

2.  The Veteran's hysterectomy, fibroids, dysmenorrhea, and polycystic ovarian syndrome were not diagnosed in service or until many years later, and the preponderance of the evidence is against a finding that hysterectomy, fibroids, dysmenorrhea, and polycystic ovarian syndrome are etiologically related to service.


CONCLUSIONS OF LAW

1. The criteria for service connection for vaginal infections, pelvic inflammatory disease, tubal occlusion, pelvic adhesions, and rectoceles have been met. 38 U.S.C. § 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017).

2. The criteria for service connection for hysterectomy, fibroids, dysmenorrhea, and polycystic ovarian syndrome have not been met. 38 U.S.C. § 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

At the outset, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was enacted in November 2000. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, and 5107 (2012).  To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2017).  The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C. § 5103A ; 38 C.F.R. § 3.159 (c).

In this case, the Board finds that all notification and development action needed to arrive at a decision has been accomplished.  In this respect, through an April 2009 notice letter, the Veteran received notice of the information and evidence needed to substantiate her claim. Thereafter, the Veteran was afforded the opportunity to respond.  Hence, the Board finds that the Veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate her claim. 

The Board also finds that the April 2009 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA.  See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103 (a) and 38 C.F.R. § 3.159 (b)). In the letter, the RO also notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom she wanted the RO to obtain and consider evidence.  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). These requirements were met by the aforementioned April 2009 notice letter. Further, the Veteran was provided notice regarding an award of an effective date and rating criteria in the April 2009 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA.

The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim decided herein. To that end, the Veteran's service treatment records, as well as post-service treatment records from VA treatment providers, have been obtained and associated with the Veteran's claims file. It must also be noted that the instant appeal was previously remanded for further development, to include providing the Veteran with an examination and to obtain any outstanding treatment records regarding her claim. The Veteran underwent VA examination concerning this claim in July 2017, report of which is of record. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Here, the Board finds that the July 2017 VA examination obtained in this case is adequate, as it is predicated on full gynecological examination as well as consideration of the Veteran's medical records and reported history. The examination considered the pertinent evidence of record, to include statements given by the Veteran, and provides explanations for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159 (c)(4). Additionally, the Veteran has not alleged that there are any outstanding records probative of the claim that need to be obtained.

Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159.

II. Analysis

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017).  Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107 (b).

Here, the Veteran contends that she has gynecological disorders, including residuals of a hysterectomy, that are the result of being sexually abused during her military service.  In September 2010, the Veteran submitted a statement in support of claim for posttraumatic stress disorder (PTSD) secondary to personal assault.  In this statement, the Veteran described in detail her rape by military police officers at a hotel party.  

Service treatment records are associated with the Veteran's claims file.  October 1988 records reflect multiple sick visits for a urinary tract infection (UTI).  The Veteran's February 1989 Report of Medical Examination (exit examination) recommends follow up with a gynecologist for abnormal pap and pelvic results.   

A general VA examination was conducted in October 1991.  The examiner noted the Veteran had abnormal pap smears since 1987 while in service; that biopsies were performed several times; and that since then, she has had hormone imbalances for which she was referred to an endocrinologist. 

Hampton VAMC medical records are associated with the Veteran's claims file.  These records reflect the Veteran had abnormal gynecological findings, to include polycyctic ovarium, and reference was made to the Veteran undergoing a hysterectomy in July 2002.

Riverside OB/GYN and Family Care medical records are associated with the Veteran's claim's file.  These records reflect the Veteran sought treatment in 2002 for urinary leakage and heavy periods. Her medical history is noted as having abnormal pap smears, fibroids, menorrhea, incontinence, rectocele, tubal occlusion, pelvic adhesions, and infertility.  The Veteran had a hysterectomy in July 2002.

A VA examination was conducted in July 2017, specifically for the Veteran's gynecological disorders.  The examiner determined that the Veteran had been diagnosed with gynecological conditions on 2 occasions.  In 1985, while still in service, the Veteran was diagnosed with MST residuals, to include urinary incontinence, genital warts, and genital herpes.  In 2002, she underwent a hysterectomy.  The examiner also noted the Veteran's conditions began in 1985 when she was sexually assaulted by her boyfriend and other military police officers. She started having problems after that, to include pelvic pain. Her condition has been better since the hysterectomy in July 2002, but she still has pain. Current symptoms include being unable to empty bladder, incontinence when she stands up, and pain in lower abdomen when she stretches.  The examiner noted the Veteran had also been treated in the past for fibroids, polycystic ovarian syndrome, menorrhea rectocele, tubal occlusion and pelvic adhesions.  

After review of the claims file, and an in-person examination of the Veteran, the examiner opined that some of the Veteran's gynecological disorders were a result of the MST in service, while others were not. Specifically, the examiner opined that the Veteran's vaginal infections, pelvic inflammatory disease, tubal occlusion, pelvic adhesions, and rectoceles were at least as likely as not incurred in or caused by service. As rationale, the examiner stated the Veteran was treated for vaginal infections more likely than not were as a result of the MST. The examiner noted that such infections can cause pelvic inflammatory disease leading to tubal occlusion and pelvic adhesions. The examiner also noted that sexual trauma can cause rectoceles. The examiner further opined that the Veteran's hysterectomy, fibroids, dysmenorrhea, and polycystic ovarian syndrome were less likely than not incurred in or caused by the MST:. As rationale, the examiner stated that the Veteran's hysterectomy was necessitated due to fibroids and dysmenorrhea.  The examiner opined that the Veteran's fibroids caused her dysmenorrhea and that polycystic ovarian syndrome is an endocrine problem unrelated to service. The examiner also noted that these conditions were resolved secondary to the 2002 hysterectomy.

Based upon the review of the STRs, the VA and private treatment records, the October 1991 and July 2017 VA examinations, and the Veteran's lay statements, the Board finds that the criteria for establishing service connection for vaginal infections, pelvic inflammatory disease, tubal occlusion, pelvic adhesions, and rectoceles have been met. The Veteran has established a current diagnosis of multiple gynecological disorders, to include vaginal infections, pelvic inflammatory disease, tubal occlusion, pelvic adhesions, and rectoceles, and her service treatment records documented recommendations at exit for follow up on abnormal pap smears.  Further, the evidence of record, including the July 2017 VA examination, establishes an etiological relationship between her in-service MST and her current vaginal infections, pelvic inflammatory disease, tubal occlusion, pelvic adhesions, and rectoceles.

Thus, after consideration of the entire record and the relevant law, the Board finds that competent, credible, and probative evidence establishes that the Veteran's vaginal infections, pelvic inflammatory disease, tubal occlusion, pelvic adhesions, and rectoceles are etiologically related to her active service.

However, the Board further finds that the Veteran's hysterectomy, fibroids, dysmenorrhea, and polycystic ovarian syndrome were not caused by, and are otherwise not etiologically linked to, her time in service, to include MST.

As an initial matter, the Board notes that the service treatment records reflect no complaints of, treatment for, or a diagnosis related to hysterectomy, fibroids, dysmenorrhea, and polycystic ovarian syndrome. Next, and more importantly, post-service evidence does not reflect complaints of problems associated with hysterectomy, fibroids, dysmenorrhea, and polycystic ovarian syndrome for many years after service. Such tends to negate a finding for service connection based on direct service incurrence. The evidence clearly shows that the Veteran's hysterectomy, fibroids, dysmenorrhea, and polycystic ovarian syndrome issues did not develop until many years following separation from service. This finding is supported by the July 2017 VA examiner, who conducted physical examination of the Veteran as well as a thorough review of her claims file and concluded that her hysterectomy, fibroids, dysmenorrhea, and polycystic ovarian syndrome are not related to her MST or otherwise etiologically linked to her time in service.

The Board has also considered the Veteran's statements regarding continuity of symptoms since service. However, the Federal Circuit has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). As the Veteran's hysterectomy, fibroids, dysmenorrhea, and polycystic ovarian syndrome are not listed under § 3.309(a), continuity of symptomatology is simply not applicable in the present case.

The Board next considers that service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints.

The service and post-service evidence provide particularly negative evidence against these claims. The Board has closely reviewed the medical and lay evidence in the Veteran's claims file and finds no evidence that may serve as a medical nexus between the Veteran's service and her hysterectomy, fibroids, dysmenorrhea, and polycystic ovarian syndrome. Although the Board recognizes that the Veteran is competent to report symptoms such as pain, the evidence in this case clearly demonstrates that her hysterectomy, fibroids, dysmenorrhea, and polycystic ovarian syndrome developed many years following separation from service. There is simply nothing in the record to support a finding that hysterectomy, fibroids, dysmenorrhea, and polycystic ovarian syndrome-in contrast to the Veteran's vaginal infections, pelvic inflammatory disease, tubal occlusion, pelvic adhesions, and rectoceles, which are herein granted service connection-began in or are otherwise in any way related to service. In so finding, the Board finds compelling the July 2017 VA examiner's opinions, which specifically stated that the Veteran's hysterectomy, fibroids, dysmenorrhea, and polycystic ovarian syndrome were not caused by her MST or otherwise related to service. There is no medical evidence of record to contradict these findings.

In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claims for service connection for a hysterectomy, fibroids, dysmenorrhea, and polycystic ovarian syndrome, and there is no doubt to be resolved. As such, the appeal as to these gynecological disorders is denied.


ORDER

Service connection for vaginal infections, pelvic inflammatory disease, tubal occlusion, pelvic adhesions, and rectoceles due to military sexual trauma is granted.

Service connection for hysterectomy, fibroids, dysmenorrhea, and polycystic ovarian syndrome is denied.


____________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs