Citation Nr: 18100489 Decision Date: 04/13/18 Archive Date: 04/13/18 DOCKET NO. 13-30 843 DATE: April 13, 2018 ISSUES DECIDED: 2 ISSUES REMANDED: 1 ORDER Service connection for a gynecological disability is denied. Service connection for a skin disability is denied. FINDINGS OF FACT The most probative evidence is against a finding that a current gynecological disability was incurred in or caused by service. The most probative evidence is against a finding that a current skin disability was incurred in or caused by service. CONCLUSIONS OF LAW The criteria for entitlement to service connection for a gynecological disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). The criteria for entitlement to service connection for a skin disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1980 to May 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in September 2017, at which time it was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be 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. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 1. Gynecological Disability The Veteran seeks service connection for endometriosis, status post hysterectomy, which she asserts had its onset during service. During the October 2016 Board hearing, the Veteran testified that after coming out of a gas chamber during service, she began having heavy menstrual bleeding and irregular cycles. She stated that she eventually underwent a hysterectomy around 1995. Service treatment records show that in May 1981, the Veteran reported mid-cycle bleeding. The assessment was breakthrough bleeding, and the treatment provider advised the Veteran to discontinue her oral contraceptives for four months. In July 1981, the Veteran reported continued mid-cycle bleeding, and her treatment provider prescribed oral contraceptives. In August 1981, she reported losing a lot of blood during her menstrual cycle. The assessment was menorrhagia. Upon review of the record, the Board finds that the probative evidence of record is against a finding that a current gynecological disability was incurred in or caused by service. As an initial matter, to the extent that the Veteran claims to have experienced continued abnormal bleeding since the 1981 in-service service treatment for breakthrough bleeding and menorrhagia, the Board finds that such assertions are not consistent with the evidence of record. Subsequent service treatment records show no additional complaints of or treatment for abnormal menstrual bleeding. On a July 1982 dental medical history, the Veteran denied any problems associated with her menstrual cycle. In October 1983, the Veteran denied any menstrual irregularity for at least six of the previous 12 months. An April 1984 report of medical examination shows that a pelvic examination was normal, and the Veteran denied any changes in menstrual pattern upon her discharge from active duty. Thereafter, an October 1984 Reserve treatment record shows that the Veteran reported increased menstrual cramping after starting birth control pills, but did not report any abnormal bleeding. VA gynecological treatment records show that in April 1985, the Veteran noted a history of irregular periods, but reported doing well on the contraceptive she started in October 1984. She reported no complaints, and a pelvic examination was normal. Although she reported some spotting a week after her period in June 1985, the treatment provider attributed it to readjusting to a change in birth control pills. Thereafter, in August 1985, she denied any problems or intermenstrual spotting. In October 1985, she reported no complaints, and a pelvic examination was normal. The Board finds the contemporaneous medical evidence to be significantly more credible and persuasive than statements made to VA for purposes of seeking compensation. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran’s testimony simply because the Veteran is an interested party; personal interest may, however, affect the credibility of the evidence); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 20036) (the Board can consider bias in lay evidence, the significant time delay between the affiants’ observations and the date on which the statements were written, and conflicting statements of the veteran in weighting credibility). A December 2010 letter from the Veteran’s private gynecologist indicates that he first treated the Veteran for bad menstrual cycles in 1986. He further stated that the Veteran dealt with heavy bleeding and severe cramping, and he eventually performed a hysterectomy to resolve those issues in 1995. In an October 2013 letter, the same gynecologist indicated that the Veteran had heavy bleeding with clots, and that she had heavy bleeding during service. He stated that he treated her with multiple dilation and curettage procedures, Provera, Depo-Provera, and birth control pills beginning in 1985, and she ultimately had a hysterectomy to resolve her bleeding. He further indicated that the heavy bleeding the Veteran experienced during service had nothing to do with endometriosis and probably had something to do with her military work and diet. The Veteran underwent a VA examination in March 2011, during which she reported a history of heavy bleeding and cramping during service. She stated that she was eventually found to have endometriosis after a laparoscopy and underwent a hysterectomy with intact cervix in 1995. In November 2017, a VA examiner reviewed the evidence of record and opined that a current gynecological disability was less likely than not related to service. In support of this, the examiner noted that the Veteran reported some mid-cycle bleeding in 1981, but denied any problems with her cycle in 1982 and denied a change in menstrual pattern upon her discharge from active duty in 1984. Although she reported some spotting in June 1985, she denied problems or intermenstrual spotting in August 1985, and she reported no gynecological complaints in October 1985. The examiner further explained that the Veteran’s private gynecologist, who reportedly started treating the Veteran in 1985 or 1986, indicated that the Veteran’s in-service symptoms had nothing to do with endometriosis and were likely caused by her diet and military duties. The examiner further explained that there was no medical literature indicating that menorrhagia and cramping caused by diet and activities would begin over a year later. Therefore, the post-service bleeding and menstrual cramping, for which the Veteran eventually underwent a hysterectomy in 1995, was less likely than not related to the in-service bleeding the Veteran reported in 1981. The Board finds the opinion of the 2017 examiner to be highly probative as it was provided following review of the claims file and provided detailed rationale for the conclusions reached. The opinions from the private physician did not provide a rationale for the conclusions. Accordingly, the Board affords greater weight to the opinion of the VA examiner. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Although the Veteran believes that a current gynecological disability is related to service, as a lay person, she has not shown that she has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis or etiology). In this regard, the diagnosis and etiology of gynecological disabilities are matters not capable of lay observation and require medical expertise to determine. Moreover, whether the symptoms the Veteran reportedly experienced in service or following service are in any way related to a subsequently diagnosed gynecological disability is also a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (“Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.”). Thus, the opinion of the Veteran regarding the etiology of a current gynecological disability is not competent medical evidence. The Board finds the opinion of the 2017 VA examiner to be significantly more probative than the Veteran’s lay assertions. In sum, the preponderance of the competent, credible, and probative evidence is against the claim, and service connection for a gynecological disability is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. See Gilbert, 1 Vet. App. at 56. 2. Skin Disability The Veteran seeks service connection for a skin disability which she asserts had its onset during service. In a March 2011 written statement, the Veteran indicated that she first experienced a skin rash during basic training after going into a gas chamber. During the October 2016 Board hearing, the Veteran testified that he experienced skin rashes during service after walking through a swampy area and finding ticks on her back. She stated that she currently has skin rashes that look like those she experienced during service. Service treatment records show that in July 1980, the Veteran reported a rash on her chin and stomach, and the assessment was dermatitis. In March 1983, the Veteran reported an itchy rash all over her body for the past five days. The diagnosis was neurodermatitis, and the Veteran was prescribed hydrocortisone. The following month, the Veteran again complained of an itchy rash on her body, which was not relieved by hydrocortisone. The treatment provider indicated that it appeared to be soap and water irritation and prescribed triamcinolone cream. Thereafter, service records show no additional complaints of or treatment for rashes. Upon review of the record, the Board finds that the probative evidence of record is against a finding that a current skin disability was incurred in or caused by service. As an initial matter, to the extent that the Veteran claims to have experienced continued itchy rashes since service, the Board finds that such assertions are not consistent with the evidence of record. An April 1984 report of medical examination indicates that the Veteran’s skin was normal upon her discharge from active duty, and she denied any history of skin diseases on an accompanying report of medical history. During an August 1984 VA examination, the Veteran did not report any rashes, and a skin examination was negative. Post-service Reserve and VA treatment records show no complaints of or treatment for itchiness or skin rashes, despite seeking treatment for various other conditions. A June 1985 VA treatment record shows that the Veteran saw a dermatologist, but only reported a lesion on her right thigh, which was diagnosed as a dermato-fibroma. She did not report any rashes or itchiness. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Thereafter, the record shows no complaints of or treatment for skin rashes until the Veteran filed her service connection claim in December 2010. The Board finds the contemporaneous medical evidence to be significantly more credible and persuasive than statements made to VA for purposes of seeking compensation. See Cartright, 2 Vet. App. at 25; see also Buchanan, 451 F.3d at 1337. The Board has also reviewed and considered an April 2011 letter from the Veteran’s former primary care physician, Dr. Yashinsky, who reportedly treated the Veteran from 1984 until she recently moved, which indicates that the Veteran has had chronic dermatitis. However, the letter is of little probative value, as it does not indicate when the Veteran’s treatment for chronic dermatitis began. See AZ, 731 F.3d at, 1311 (citing Fed. R. Evid. 401) (noting that evidence is pertinent if it tends to prove or disprove a material fact). In March 2011, VA requested records of treatment from all medical care providers who treated the Veteran for a skin condition; however, she did not submit or request that VA obtain records from Dr. Yashinsky. Although the Veteran eventually submitted an authorization for VA to obtain such records after the Board specifically requested she do so in the September 2017 remand, an October 2017 correspondence from Dr. Yashinsky’s office indicates that no records of treatment were found for the Veteran. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (“The duty to assist is not always a one-way street.”). VA dermatology treatment records show that the Veteran was treated for a rash on her chest and upper arms in January 2011 and February 2011. The diagnosis was tinea corporis, and she was prescribed Ketoconazole, which reportedly improved her symptoms. A November 2013 VA treatment record shows that the Veteran reported a history of itchy round raised spots on her chest, back, and arms. She stated that she was concerned that the rash was due to a tick bite she received during service. The dermatologist reviewed pictures the Veteran submitted of her active lesions and indicated that they did not appear to be consistent with Lyme disease. The assessment was presumed tinea corporis, and the treatment provider prescribed oral Ketoconazole and topical Lamisil in the event that she had a flare up. The Veteran underwent a VA skin examination in March 2011, during which she reported having a skin rash during service after going into a gas chamber. The examiner noted that the Veteran was treated for a rash on her chest and upper arms in January 2011 and February 2011, which was diagnosed as tinea corporis with good response to antifungal treatment. A physical examination revealed no active tinea corporis at the time of the examination; however, there were some residual post-inflammatory changes in the truncal region and upper arms. The examiner opined that a current skin disability was less likely than not incurred in or caused by service. In support of this, the examiner explained that the Veteran was seen for rashes during service, which were attributed to neurodermatitis and water irritation. The examiner indicated that there was no indication of any tinea infection during service, and therefore, her current tinea corporis was less likely than not related to her in-service skin symptoms. There is no competent medical opinion to the contrary. Although the Veteran believes that a current skin disability is related to service, as a lay person, she has not shown that she has specialized training sufficient to render such an opinion. See Jandreau, 492 F.3d at 1376-77. Moreover, whether the symptoms the Veteran reportedly experienced in service or following service are in any way related to a subsequently diagnosed skin disability is also a matter that requires medical expertise to determine. See Clyburn, 12 Vet. App. at 301. In this regard, the diagnosis and etiology of skin disabilities are matters not capable of lay observation and require medical expertise to determine. Thus, the opinion of the Veteran regarding the etiology of a current skin disability is not competent medical evidence. The Board finds the opinion of the VA examiner to be significantly more probative than the Veteran’s lay assertions. In sum, the preponderance of the competent, credible, and probative evidence is against the claim, and service connection for a skin disability is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. See Gilbert, 1 Vet. App. at 56. REMANDED ISSUE The issue of entitlement to service connection for a low back disability is remanded for additional development. In September 2017, the Board remanded the Veteran’s claim in order to obtain a medical opinion which considers post-service treatment records showing complaints of low back pain in 1984 and 1985. In November 2017, another opinion was obtained; however, the examiner did not appear to consider those records. Accordingly, the Board finds that a remand is necessary in order to obtain another medical opinion in accordance with the terms of the Board’s September 2017 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Updated VA treatment records should also be obtained. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file updated VA treatment records. 2. After the above has been completed, send the claims file to a VA examiner to opinion an opinion with respect to the Veteran’s service connection claim for a low back disability. If another examination is deemed necessary to respond the question, one should be scheduled. After a review of the claims file, the examiner should provide an opinion as to whether it at least as likely as not (50 percent probability or greater) that any current low back disability is a continuation of or otherwise related to the Veteran’s in-service treatment for back pain in January 1981. A complete rationale for all opinions must be provided. The examiner’s opinion must reflect consideration of the following evidence: • An April 1984 report of medical history showing that the Veteran reported a history of recurrent back pain upon her discharge from active duty. (VBMS—STR-Medical, received 05/27/1987) • An August 1984 VA examination showing that the Veteran reported intermittent lower back pain when bending. (VBMS—VA Examination, received 06/20/1984) • An April 1985 VA treatment records showing treatment for low back pain with lumbar x-rays. (VBMS—Medical Treatment Record- Government Facility, received 02/19/1986) 3. After undertaking the development above and any additional development deemed necessary, the Veteran’s claim for service connection for a low back disability should be readjudicated. If the benefit sought on appeal remains denied, the Veteran should be furnished a supplemental statement of the case and given an appropriate period to respond thereto before the case is returned to the Board, if in order. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Banister, Associate Counsel