Citation Nr: 20009652 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 14-21 795 DATE: February 6, 2020 ORDER 1. Entitlement to service connection for residuals of hysterectomy is denied. REMANDED 2. Entitlement to service connection for a gastrointestinal (GI) disability is remanded. 3. Entitlement to increases in the (10 percent prior to June 11, 2014, and 30 percent from that date) staged ratings assigned of for nephrolithiasis is remanded. FINDING OF FACT The Veteran’s postservice hysterectomy is not shown to have been performed for disability manifested or incurred in service, to include as due to a sexual assault therein. CONCLUSION OF LAW Service connection for residual of hysterectomy is not warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from September 1970 to September 1978. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision. [An August 2017 Decision Review Officer (DRO) decision increased the rating for nephrolithiasis to 30 percent, effective June 11, 2014; as this grant did not represent a total grant of the benefit sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993).] In July 2015, a Travel Board hearing was held before the undersigned; a transcript is in the record. In April 2016 and February 2018, the matters were remanded for further development. In February 2019 the Veteran filed a notice of disagreement (NOD) with an April 2018 rating decision that increased the rating for posttraumatic stress disorder (PTSD) to 50 percent effective December 29, 2014, initiating an appeal in the matter. She elected the decision review officer (DRO) process in lieu of the traditional appeals process. Subsequently, a DRO provided notice to the Veteran, advising her that a statement of the case (SOC) would be issued if the matter could not be resolved through the DRO process. Inasmuch as the DRO has responded to the Veteran’s NOD, and a SOC would be premature given the DRO process, remand for issuance of a SOC at this time is not necessary. See Manlicon v. West, 12 Vet. App. 238 (1999). 1. Entitlement to service connection for residuals of hysterectomy is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disorder first diagnosed after discharge may be service connected if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran asserts that she her (May 1997) hysterectomy was required for symptoms that began in service or for disability from a sexual assault therein. The Veteran’s service treatment records (STRs) note multiple occasions of treatment for gynecological conditions. A November 1972 STR notes that her uterus was enlarged, and that she complained of severe dysmenorrhea and irregular periods; it was later revealed that she had been raped in November 1972 and was pregnant. A December 1972 STR notes that the Veteran reported that her uterus still felt somewhat enlarged, and thereafter, her pregnancy was terminated with an abortion. A February 1974 STR notes that she reported heavy blood flow with clots and cramping, and it was noted that a spontaneous miscarriage was complete. In a December 1974 STR, a Pap smear found rare slightly dysplastic squamous cells, but the Pap smear was found to be normal/negative. In July 1976, she gave birth to a daughter. On April 1978 service separation examination, it was noted that she was six months pregnant; no additional gynecological findings were noted. In August 1978 (while still on active duty), she gave birth to another daughter. Following service, May 1997 private treatment records show that the Veteran underwent a total l hysterectomy with bilateral salpingo-oophorectomy, with preoperative diagnoses of symptomatic uterine prolapse, pelvic adhesions, chronic pelvic pain, and irregular uterine enlargement. It was noted that a January 1997 laparoscopy for dysfunctional uterine bleeding and pelvic pain had revealed findings consistent with symptomatic uterine prolapse, possible mild endometriosis or adenomyosis and possible small uterine fibromas with pelvic adhesions. On September 2012 VA gynecological examination, it was noted that the Veteran had a diagnosis of endometriosis, but currently did not have any findings, signs, or symptoms of endometriosis (considering her 1997 hysterectomy). The examiner opined that the claimed endometriosis/hysterectomy was less likely than not incurred in or caused by an injury, event, or illness in-service. The examiner explained that while the Veteran experienced dysmenorrhea in service in 1972, there was no continuum of care between her discharge in 1978 and her hysterectomy in 1997; that endometriosis was not definitely diagnosed with laparoscopic procedure or with hysterectomy, that the hysterectomy was for a prolapsed uterus, and that the cause of endometriosis remains unknown. The examiner concluded with the vague note that as the Veteran “possibly had mild endometriosis” 19 years following military discharge and a hysterectomy was done secondary to a prolapsed uterus - it was less likely than not that her endometriosis and hysterectomy were related to a gynecological problem in the military. At the July 2015 hearing, the Veteran testified that she had endometriosis in service (after she was raped). Her attorney argued that research has shown that sexual trauma (such as the Veteran suffered in service) can be a cause of endometriosis and then eventually uterine prolapse. On June 2017 VA gynecological examination, the examiner opined that the Veteran’s hysterectomy was less likely than not related to her military service. He explained that no records in service support diagnoses of endometriosis or uterine prolapse (both diagnosed following discharge from service). He explained that the intervals between the November 1972 sexual assault, a February 1974 spontaneous miscarriage, and December 1974 pap smear findings and her 1997 hysterectomy made it unlikely that those caused pathology that required the hysterectomy. It was also noted that she became pregnant from a 1972 sexual assault and that the pregnancy was terminated by an abortion. He opined that if the abortion was late term, it could have been a precipitating factor for development of uterine prolapse. The Board found in its February 2018 remand that although the June 2017 opinion was thorough, well-reasoned, and rejected other alleged factors as etiological factors for the hysterectomy, there was missing information that may be available based on the Veteran’s recollection of when the abortion was performed that needed to be sought. A June 2018 VA letter to the Veteran requested the information noted in the February 2018 remand. In an August 2019 statement, the Veteran discussed the sexual trauma in service but did not provide any additional information regarding the date of the abortion (and whether or not it was late term), and indicated that she had previously contacted Travis AFB and was informed that no additional records were available regarding the abortion. In an August 2019 addendum opinion, the provider opined that it was less likely than not that the Veteran’s hysterectomy was for disability due to injury, event, or illness in-service. He referred to the June 2017 opinion which indicated that diagnoses of endometriosis or uterine prolapse were not noted in the Veteran’s STRs. He indicated that the disorders were diagnosed after her service, and in 1990 a hysterectomy was performed due to uterine prolapse and endometriosis. The provider explained that the Veteran was able to conceive children successfully after her abortion and that the full-term pregnancies likely resulted in the eventual uterine prolapse, as this is a medically documented complication in some women with multiple pregnancies (as is the case with this Veteran). He also noted after a review of the additional evidence in the record, that there was insufficient evidence in the file to suggest that the abortion directly resulted in the uterine prolapse and endometriosis and to determine whether or not the abortion was late term. Regarding the Veteran’s statements indicating that she required a postservice hysterectomy due to symptoms that began in service or disability due to a sexual assault in service, she is a layperson, and her assertion that her hysterectomy was for disability due to an acknowledged sexual assault in service is not competent evidence. She has not provided any supporting medical opinion or treatise evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The record does not show or suggest that any hysterectomy residuals are directly related to the Veteran’s active duty service. Regarding the critical factor of a nexus between any current hysterectomy residuals and service, the Board finds that the most probative, and only fully adequate, medical opinion evidence in the record is in the report of the June 2017 VA examination (with August 2019 addendum opinion). Cumulatively they reflect familiarity with the Veteran’s medical history and lay accounts, and the opinions were based on a complete examination and include rationale that cites to accurate supporting factual data. The VA examiner explained that there were no records in the Veteran’s STRs to support diagnoses of endometriosis or uterine prolapse therein (both were diagnosed following her discharge from service), and that the interval between the November 1972 sexual assault, February 1974 spontaneous miscarriage, and December 1974 pap smear findings and her 1997 hysterectomy made it unlikely that those events caused pathology that required the hysterectomy. However, he also opined that if the abortion was late term, it could have been a precipitating factor for her development of uterine prolapse. After further information from the Veteran was sought in June 2018, her August 2019 statement not provide any additional information pertaining to whether the abortion was late term, and indicated no additional treatment records regarding the abortion are available. Thereafter, in an August 2019 addendum, the provider reviewed the additional records in the file and opined that the Veteran’s hysterectomy residuals were not related to her service and explained that she was able to conceive children successfully after her abortion and that the full-term pregnancies likely resulted in the eventual uterine prolapse. He also noted (addressing whether the abortion was late term) that there was insufficient evidence in the file to determine whether it was late term. The VA examiner’s opinions (particularly with addendum) are cumulatively entitled to substantial probative weight. As there is no competent (medical opinion) evidence to the contrary, the Board finds them persuasive. Therefore, the preponderance of the evidence is against the claim of service connection for hysterectomy residuals, and the appeal in the matter must be denied. REASONS FOR REMAND While the Board regrets the further delay in resolution of this the matters, it finds a remand for further evidentiary development unavoidable. 1. Entitlement to service connection for a GI disability. On August 2019 VA esophageal examination, the Veteran reported that she began having acid reflux symptoms in service including heartburn, vomiting, and acid reflux at night. She began receiving VA treatment in 1996 and related that the prescribed medication, Omeprazole, has been effective. The examiner indicated that VA treatment records note that on her first recorded visit in September 1998, she was noted to have a history of reflux; gastroesophageal reflux disease (GERD) was diagnosed. On examination, it was noted that although her treatment included taking continuous medication for the diagnosed condition, she did not have any signs or symptoms of any esophageal condition, including GERD, such as esophageal stricture, spasm, and diverticula. It was noted that no diagnostic studies were performed (on a previous, June 2017 examination, an August 2004 upper endoscopy that showed mild GERD was noted). The examiner opined that it was less likely than not that a GI disability to include GERD was incurred in or caused by military service. He explained that the only GI condition the Veteran had was GERD, which she says began in service and has persisted up to the present time. He noted that the Veteran’s STRs are silent for symptoms of reflux, and that the first documentation of GERD was in September 1998, when a history of reflux was noted. He opined that, given the absence of symptoms suggesting GERD in service and the 20-year hiatus from separation in 1978 until the first VA appointment in 1998 without mention of GERD, it is less likely than not that her GERD is related to military service. In an October 2019 addendum, the August 2019 examiner addressed whether any of the Veteran’s service-connected disabilities could have caused or aggravated her GERD. The provider opined that since the Veteran did not have any symptoms of GERD in service (silent STRs) and did not have such diagnosis until 1978 [sic 1998] there was no means by which military service could aggravate a condition that was not identified until 20 years after separation. He explained that none of the Veteran’s service-connected disabilities (kidney stones, nasal septal deviation, scars, and PTSD) are capable of aggravating GERD beyond natural progression (as GERD is an anatomical abnormality of the gastroesophageal sphincter which malfunctions and permits stomach contents to reflux into the esophagus). The August 2019 medical opinion and October 2019 addendum are inadequate for rating purposes. The examiner notes that the Veteran’s STRs are silent for any symptoms of reflux; however, the February 2018 Board remand specifically asked the examiner to discuss the multiple complaints of gastric distress in service (a November 1972 STR notation of three weeks of epigastric distress following meals, a November 1976 notation of an impression of “gastra,” and a January 1978 STR notation of nausea). Additionally, an etiology for the Veteran’s GI disability was not identified, and previous diagnostic studies, such as a January 2016 upper endoscopy and colonoscopy that showed mild gastritis, were not noted, suggesting a less than complete review of the file. Another examination to secure an adequate medical advisory opinion is necessary. Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to increases in the (10 percent prior to June 11, 2014, and 30 percent from that date) staged ratings assigned of for nephrolithiasis. A February 2018 Board decision granted service connection for hypertension, and remanded the issue of entitlement to increases in the ratings for nephrolithiasis (because the rating for hypertension would have bearing on the rating for nephrolithiasis). An April 2018 rating decision assigned a 0 percent rating for hypertension and combined it with the 30 percent rating assigned for nephrolithiasis. The next higher, 60 percent rating, for nephrolithiasis, is warranted when there is constant albuminuria with some edema; or definite decrease in kidney function; or hypertension at least 40 percent disabling under Diagnostic Code 7101. Treatment records throughout the period appeal suggest that the Veteran may have experienced periods of definite decrease in kidney function. Lab results from November 2014 to September 2018 showed fluctuations in estimated glomerular filtration rate (EGFR) (measured in mL/min) and creatinine levels. Specifically, they showed an EGFR level of 53.24 (November 2014), an EGFR level of 53.15 (July 2015), an EGFR level of 28 and an increase in creatinine to 1.8 (March 2016), an increase then decrease in creatinine from 1.9 to 1.3 (May 2016), an EGFR level of 47.46 (June 2016), a diagnosis of chronic kidney disease stage III (July 2016 private treatment records), an EGFR level of 41 and a creatinine level of 1.3 (March 2018), and an EGFR level of 35 and a creatinine level of 1.5 (September 2018). A fully adequate examination to assess the current severity of the Veteran’s nephrolithiasis disability, and the severity of the nephrolithiasis disability throughout the period on appeal, is necessary. The record contains records of VA treatment the Veteran received for GI disability and nephrolithiasis only up to July 2019. As she receives ongoing VA treatment for the disabilities, and records of such treatment are pertinent evidence, outstanding records of the treatment must be obtained and considered. The matters are REMANDED for the following: 1. Secure for the record the complete clinical records (any not already associated with the claims file) of all VA evaluations or treatment the Veteran has received for a GI disability and nephrolithiasis since July 2019. 2. Then arrange for a gastrointestinal diseases examination of the Veteran to ascertain the nature and likely etiology of her current gastrointestinal disabilities. The Veteran’s record must be reviewed by the examiner in conjunction with the examination. The examiner should provide opinions that respond to the following: (a) Identify (by diagnosis) each gastrointestinal disability entity found/shown by the record (to include GERD). (b) Identify the likely etiology for each GI disability diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that such disability was incurred or aggravated by, the Veteran’s service? If not, was it caused or aggravated (the opinion must address aggravation) by an already service-connected disability? The examiner must explain the rationale for all opinions. [The rationale should include some discussion regarding the relevance, if any, of the GI complaints in service noted above. If the disability is found to be unrelated to service, the examiner should identify the etiology considered more likely.] 3. Arrange for a kidney diseases examination of the Veteran to determine the current severity of her nephrolithiasis and, to the extent possible, obtain a retrospective opinion regarding the severity of her nephrolithiasis from January 31, 2012 (if there was varying severity during the period). If the record reflects varying severity of renal dysfunction, identify, to the extent possible, the parameters of all the distinct periods of varying levels of severity. The Veteran’s claims file, and the criteria for rating renal dysfunction (in 38 C.F.R. § 4.115a) and hypertension (in Code 7101) should be and reviewed by, the examiner. The examiner should: (a) Identify the diagnostic code that best reflects the disability picture presented by the nephrolithiasis. (b)Describe in detail all symptoms of, and functional impairment flowing from, the disability. All opinions must include rationale. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.