Citation Nr: 20053377 Decision Date: 08/12/20 Archive Date: 08/12/20 DOCKET NO. 17-22 610 DATE: August 12, 2020 REMANDED Entitlement to service connection for uterine fibroids is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1994 to November 1994. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This claim was previously before the Board in March 2019 and was denied. The Veteran appealed the decision to the United States Court of Appeals for Veterans’ Claims (CAVC or “the Court”). In February 2020, the Court granted a February 2020 Joint Motion for Partial Remand (JMPR) vacating the Board’s decision in regard to the claim for service connection for uterine fibroids and remanded the claim for further development. While the only issue before the Board at this time is the uterine fibroids, the Veteran’s claims file shows that there is a claim for generalized anxiety disorder (GAD) that was remanded by the Board in the March 2019 decision. That claim is still pending and is not currently ripe for a decision. 1. Entitlement to service connection for uterine fibroids is remanded. The Veteran contends that she is entitled to service connection for her uterine fibroids. The Veteran claims this condition manifested while in service, and that she was diagnosed shortly after leaving service. The Board previously denied her claim in a March 2019 decision relying mainly on a January 2013 VA examination, which noted that the Veteran was seen for one episode of abdominal pain and heavy menses while on active duty. Even if the Veteran was diagnosed with fibroids at that time, the examiner opined, the condition could not have been incurred in or due to service because fibroids are “slow growing” and would, therefore, have preexisted her 49-day service. The examiner found no evidence that the fibroids were caused or aggravated by her service. In the February 2020 JMPR, the VA conceded there was an inadequate statement of reasons and bases provided in the Board’s decision regarding the presumption of soundness. Both parties agreed the matter should be remanded to expand the analysis and diagnosis regarding the Veteran’s uterine fibroid disability. In light of the medical evidence in this case, and the agreed upon terms of the JMPR, the Board finds a remand is necessary to obtain an additional VA medical opinion. That is, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination. 38 U.S.C. § 1111. In this case, notwithstanding the January 2013 VA examiner’s opinion, the Veteran’s July 1994 entrance exam is absent of any notations of defects, infirmities, or disorders. While an in-service November 1994 treatment record confirms the Veteran was treated for constant, sharp pain, yeast infection, and a lesion or mass on her pelvic area, there is no indication she entered service with uterine fibroids. Thus, the presumption of soundness attaches in this case. In order to rebut the presumption of soundness, the Secretary must point to clear and unmistakable evidence that the condition both preexisted and was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The Board finds while the January 2013 VA examiner’s opinion certainly weighs heavily in support of a preexisting condition, further clarity is necessary as to whether it is “undebatable” that the Veteran’s uterine fibroids pre-existed service and were not aggravated by service. The matters are REMANDED for the following action: 1. Obtain any additional VA treatment records, to include VA treatment records from February 2017 to the present, and any records available after the Veteran was discharged form service in 1994 that may include records of a formal diagnosis of uterine fibroids. 2. After obtaining any outstanding records to the extent possible, ask the appropriate examiner to review the Veteran’s files. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. (a.) The examiner should clarify whether the Veteran’s uterine fibroids (1) clearly and unmistakably pre-existed service and if so (2) were clearly and unmistakably not aggravated beyond natural progression by an in-service event, injury or disease. Any such clear and unmistakable evidence must be identified. The examiner should discuss the significance of the in-service November 1994 treatment for constant, sharp pain, yeast infection, and a lesion or mass on her pelvic area. A complete rationale must be provided for the opinion and conclusion(s) expressed. If aggravation is found, the examiner should identify the baseline level of severity prior to such aggravation. (b.) If not preexisting, is it at least as likely as not (a 50 percent or greater probability) that any diagnosed uterine fibroid condition is related to service, to include the Veteran’s November 1994 in-service treatment. The examiner should consider all medical and lay evidence of record. The examiner is advised that the Veteran is competent to report her symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. If the examiner is unable to provide any required opinion, he or she should explain why. If an opinion cannot be provided without resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case, and identify what additional evidence (if any) would allow for a more definitive opinion. 3. After the above development, and any additional indicated development, has been completed, readjudicate the issues on appeal. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Boivin, 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.