Citation Nr: 20023056 Decision Date: 04/02/20 Archive Date: 04/02/20 DOCKET NO. 13-30 633 DATE: April 2, 2020 ORDER Service connection for hysterectomy is denied. FINDING OF FACT There is no competent and probative evidence establishing that the Veteran’s fibroids resulting in hysterectomy are a maturation or continuation of her in-service gynecological complaints or otherwise etiologically related to service, to include as a result of her exposure to chemicals/fuels while working as an aircraft fuel systems journeyman. CONCLUSION OF LAW The criteria for service connection for hysterectomy have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service from April 2001 to July 2004. This matter comes before the Board of Veterans Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). A transcript of the Veteran’s testimony at a videoconference hearing before the undersigned Veterans Law Judge in October 2016 is of record. The Board sought an expert medical opinion in October 2017. In a January 2019 decision, the Board granted service connection for uterine ablation and remanded the claim for service connection for hysterectomy. It has been returned for review. 1. Service connection for hysterectomy Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 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). The Veteran seeks entitlement to service connection for a gynecological condition resulting in uterine ablation and hysterectomy. Service connection for uterine ablation has been established, leaving only the question for whether service connection for hysterectomy is warranted. Service treatment records indicate that in September 2002, the Veteran was seen with complaints of abnormal bleeding since having an IUD inserted in May 2002, sometimes having a cycle two to three times a month. She complained of dyspareunia, abnormal or painful periods, and pre-menstrual syndrome in October 2002 and was found to have a boil in vaginal area in November 2002. The Veteran reported irregular, heavy periods in February 2003, at which time it was noted she had been on Depo Provera for six months but had been having this problem long before that. She denied any pelvic pain or cramping and stated that sometimes her periods last a month at a time. The following month, the Veteran was seen for irregular bleeding, at which time she reported two to five days between periods and 26-29 flow days. Her last injection of Depo Provera had been in December 2002. She reported currently having bleeding between periods, bleeding after intercourse, and painful intercourse. Physical examination revealed normal vagina, cervix and uterus. It was noted that there was spotting, but no active bleeding, that pelvic examination was normal, and that the spotting was probably secondary to the Depo Provera. The side effects of the medication were discussed in a subsequent March 2003 record, but the Veteran was adamant there was a problem and a pelvic ultrasound was ordered. A March 2003 pelvic sonogram showed the uterus was retroverted in position but was otherwise normal in size and contour. The myometrium was uniform in echogenicity. The endometrial canal echoes were midline in position and normal in width. The ovaries were normal in size; several small follicles were present within the left ovary. The adnexal regions were free of solid and cystic mass lesions. No fluid was seen in the cul-de-sac. The conclusion was retroversion of the uterus, otherwise normal pelvic sonogram. The post-service medical evidence of record indicates that the Veteran sought VA and private treatment for irregular bleeding and pelvic pain. In pertinent part, a May 2007 pelvic ultrasound contained an impression of 2.0 centimeter left ovarian complex cyst versus mass; mild to moderate pelvic free fluid; no evidence of ovarian torsion; an August 2008 pelvic ultrasound contained an impression of small complex cyst in each ovary; retroflexed uterus; small amount of free fluid; otherwise negative; and a September 2008 record indicates that the left complex ovarian cysts was now measuring 1.5 millimeters in size and that the Veteran had a new 1.3 centimeter complex cyst in the right ovary as well as pelvic pain. The Veteran was seen privately in October 2008 with complaint of abdominal pain. She reported her menstrual cycle was normally regular, but she was two weeks late. An October 2008 pelvic ultrasound contained a pertinent impression of hypoechoic lesion in the left ovary likely to represent corpus luteal cyst. It also confirmed a pregnancy. In November 2008, the Veteran miscarried. Records dated after the miscarriage indicate the Veteran continued to have abnormal bleeding/cycles and that she underwent bilateral tubal ligation and endometrial ablation in February 2009. The Veteran was assessed privately with dysfunctional uterine bleeding and female pelvic pain in April 2011. Following a pelvic ultrasound, the Veteran was seen again that same month and assessed with chronic pelvic pain with dyspareunia; fibroid uterus with abnormal uterine bleeding, treated with hormones without results, had endometrial ablation bleeds two to three times a month; and tubal ligation. It was also noted the Veteran was worried about cancer in fibroids. The Veteran underwent endometrial biopsy in May 2011, after which it was determined that her bleeding seemed likely from the multiple (apparent) uterine fibroids. In subsequent private treatment records, it was recorded that the Veteran began having abnormal uterine bleeding with bleeding between periods and very heavy periods since 2002 and had failed on multiple different types of birth control pills. She had had a couple of dilation and curettage procedures and an endometrial ablation, most recently in 2009, that were unsuccessful in managing the abnormal uterine bleeding. The Veteran also reported that she could have irregular uterine bleeding up to three times a month and would bleed two to five days at a time. She also reported that she had been having pelvic pain since 2006, manifested primarily by severe incapacitating “doubling up” and dyspareunia. The Veteran underwent a hysterectomy with bilateral salpingo-oophorectomy in June 2011. The Board sought a medical opinion regarding the Veteran’s uterine fibroids to address her October 2016 testimony that she had gone to the doctor numerous times in 2002 for abnormal bleeding, describing how she bled for a year and a half straight after she had her daughter and after she had gone back to work working around JP-8 and methyl ethyl ketone; that this continued until she had a hysterectomy in 2011; that no one ran any tests to diagnose the situation and, instead, she was treated with birth control medication to try and fix the problem; and that the chemicals/fuels she was exposed to during service caused reproductive health issues, resulting in a uterine ablation for fibroids and a hysterectomy. The opinion obtained in January 2018 determined that the gynecological condition resulting in endometrial ablation was more likely than not a continuation of the irregular bleeding, or menorrhagia, that the Veteran experienced during service, which allowed the Board to grant service connection for uterine ablation. However, the opinion also indicated that an expert opinion from a toxicologist may provide more accurate information as to the health effects of the Veteran’s toxic exposures, though it was the expert’s opinion that there was low likelihood that the Veteran’s fibroids might have resulted from exposure to JP-8 jet fuel or methyl ethyl ketone. The Board remanded the claim for service connection for hysterectomy in January 2019 to obtain an opinion from a toxicologist or specialist in environmental medicine for a medical opinion as to whether it is more likely (greater than 50 percent probability), less likely (less than 50 percent probability), or at least as likely as not (50/50 probability) that the Veteran’s gynecological condition resulting in hysterectomy is a maturation or continuation of the gynecological is etiologically related to service, to include as a result of her exposure to chemicals/fuels while working as an aircraft fuel systems journeyman. A VA examiner provided an opinion in July 2019 that it is less likely than not that the Veteran’s total abdominal hysterectomy with bilateral salpingo-oophorectomy due to multiple uterine fibroids (claimed as gynecological condition resulting in hysterectomy) is a maturation or continuation of the gynecological condition etiologically related to service, to include as a result of her exposure to chemicals or fuels while working as an aircraft fuel systems journeyman. The rationale employed by the examiner was based on the fact that service treatment records are silent for the gynecological condition of fibroids; that an in-service April 2003 pelvic ultrasound showed no objective evidence of uterine fibroids; that an August 2008 post-service pelvic ultrasound showed no objective evidence of uterine fibroids; and that an April 2011 post-service pelvic ultrasound showed evidence of multiple uterine fibroids. The examiner concluded that the hysterectomy was clearly acquired and diagnosed seven years after service. The examiner explained that there is no known reputable, evidence-based, medical or scientific medical literature supporting the Veteran’s contention; that uterine fibroids are not uncommon in the general female population; that the incidence of fibroids increases with natural age; and that there is genetic predisposition. The examiner determined that it is not possible to ascertain the Veteran’s precise risk factors for uterine fibroids without resorting to mere speculation since there are multiple risk factors. The examiner cited to medical peer reviewed, evidence- based medical literature current through June 2019 regarding uterine leiomyomas (fibroids) in “Up To Date” reports, which specifically listed the following risk factors: race, early menarche, reproductive and endocrine factors, other endocrine factors, obesity, diet, consumption of alcohol, and genetics. Exposure to chemicals or fuels, to include JP-8 jet fuel or methyl ethyl ketone, was not included in the risk factors listed. The Board interprets this opinion as essentially concluding that the Veteran’s hysterectomy was due to multiple uterine fibroids, but that the fibroids were unrelated to her in-service gynecological problems or to service, to include any exposure to chemicals/fuels during service. The preponderance of the evidence is against the claim for service connection for hysterectomy. While there is no doubt the Veteran had in-service gynecological problems and that those problems continued after service resulting in the need for uterine ablation, there is no competent and probative evidence to establish that the Veteran’s need for a hysterectomy in 2011 also resulted from the in-service gynecological problems. Rather, the evidence establishes that the hysterectomy was performed as a result of uterine fibroids, but that the fibroids are unrelated to service. As noted above, the January 2018 expert opinion established that the likelihood that the Veteran’s fibroids might have resulted from exposure to JP-8 jet fuel or methyl ethyl ketone was low and the July 2019 VA examiner concluded that it is less likely than not that the hysterectomy is etiologically related to service, to include as a result of her exposure to chemicals/fuels while working as an aircraft fuel systems journeyman. These opinions, which stand uncontroverted in the record, are afforded high probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The Board acknowledges that it remanded the claim in January 2019 to obtain an opinion from a toxicologist or specialist in environmental medicine because the January 2018 expert opinion indicated that a toxicologist may provide more accurate information as to the health effects of the Veteran’s toxic exposures. The Board further acknowledges that there is no indication that the July 2019 opinion was provided by such expert, but rather by an internist. However, the opinion provided by the July 2019 VA examiner substantially complied with the Board’s remand directive due to its thoroughness and citation to current medical literature, as well as the fact that internists possess a broad range of medical knowledge. See D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Board concludes that remand is not needed for strict compliance with the prior remand directive. Moreover, neither the Veteran nor his representative has challenged the adequacy of the opinion or the competence of the physician. While the Veteran believes that her uterine fibroids resulting in hysterectomy are related to gynecological problems in 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). In this regard, the diagnosis and etiology of uterine fibroids are matters not capable of lay observation and require medical expertise to determine. Accordingly, the Veteran’s opinion as to the diagnosis or etiology of her uterine fibroids, to include the assertion that her in-service exposure to JP-8 jet fuel or methyl ethyl ketone resulted in uterine fibroids, which in turn resulted in the need for hysterectomy, is not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to the development of uterine fibroids and subsequent need for a post-service hysterectomy is also a matter that also 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 Veteran’s own opinion regarding the etiology of her uterine fibroids with subsequent need for hysterectomy is not competent medical evidence. The Board finds the opinions of the expert and VA examiner to be significantly more probative than the Veteran’s lay assertions. In the absence of competent and probative evidence establishing that the Veteran’s fibroids resulting in hysterectomy are a maturation or continuation of her in-service gynecological complaints or otherwise etiologically related to service, to include as a result of her exposure to chemicals/fuels while working as an aircraft fuel systems journeyman, service connection for hysterectomy is not warranted and the claim must be denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Van Wambeke, 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.