Citation Nr: 21062114 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 15-06 349A DATE: October 6, 2021 ORDER Service connection for residuals of an in-service tubal ligation is denied. REMANDED Service connection for a bilateral lower extremity disability, to include shin splints, is remanded. FINDING OF FACT A diagnosis of any residuals from the in-service tubal ligation resulting in impairment in earning capacity have not been shown during the course of the appeal, or at any time proximate to the filing of the claim for service connection. CONCLUSION OF LAW The criteria for service connection for residuals of a tubal ligation are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the U.S. Army from August 1972 to March 1973, and from November 1974 to August 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned at a hearing held in October 2015; a transcript of that hearing is of record. The Board most recently remanded the appeals for further development in November 2020,, including obtaining opinions on the etiology of any current gynecological disabilities. To the extent that the directed VA examination report was procured in June 2021, the Board finds that substantial compliance with its remand directives pertaining to such claim has been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). However, for the reasons below, to the extent that the April 2021 VA opinion pertaining to the Veteran's bilateral legs failed to include the directed discussions, substantial compliance with the Board's November 2020 Remand directives has not occurred; accordingly, the Veteran's claims for her bilateral leg disabilities must once again be remanded for further development. See id. 1. Service Connection for the Residuals of a Tubal Ligation is Denied. The Veteran contends that service connection is warranted for residuals of an in-service tubal ligation, to include infertility. After review of the evidence, both lay and medical, the Board finds that service connection for residuals of a tubal ligation is not warranted. At the outset, the Board is aware of, and sympathetic to the Veteran's contentions and arguments set forth throughout the record. The Veteran has clearly stated that she is aware that the in-service tubal ligation would result in an inability to get pregnant, but that she understood the procedure to be reversable. However, as discussed at length below, the Board is unable to grant service connection absent a current disability or the presence of symptoms that cause an impairment in earning capacity. The Board is sympathetic to the Veteran's assertion; however, neither the Board nor the Court is a body which may provide for equitable relief under any circumstances. See Moffitt v. Brown, 10 Vet. App. 214, 225 (1997) ("[The] Court [and, by extension, the Board] is not a [forum] of equity and cannot provide equitable relief" (citing Harvey v. Brown, 6 Vet. App. 416, 425 (1994)). Turning to the requirements for service connection, in general, service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; Degmetich v. Brown, 104 F.3d. 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. In the absence of proof of a present disability due to disease or injury that occurred in service, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Sanchez-Benitez, 259 F.3d. 1356 (2001). The requirement for a current disability is satisfied when a claimant has a disability either at the time a claim for VA compensation is filed, or at any time during the pendency of that claim or shortly before. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). A claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, the Court has also made clear that a diagnosis is not required in order to satisfy the current disability requirement and pain or other symptoms can constitute disability if they cause impairment in earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). In May 1980, the Veteran indicated a desire for bilateral tubal ligation for sterilization purposes and placed her name on a waitlist. The Veteran underwent a bilateral tubal ligation in December 1980. Follow-up treatment notes show a well-healed and clean incision. In February 2013, the Veteran filed for service connection for residuals of a tubal ligation. The claim was denied in a December 2013 rating decision. The Veteran filed a timely notice of disagreement and this appeal followed. In January 2019, the Veteran underwent a VA examination to determine any residuals of the in-service tubal ligation. The Veteran reported mild intermittent pain. The VA examiner diagnosed the Veteran with residuals, tubal ligation, resolved. The VA examiner then opined that any symptoms were more likely the result of the Veteran's diagnosed endometriosis and the natural course of pre-menopause and menopause. In June 2021, a VA gynecologist review the Veteran's claims file and stated that the Veteran does not, and has not, been diagnosed with infertility. The VA gynecologist indicated that infertility implies an involuntary inability to get pregnant, while the Veteran underwent an elective sterilization procedure. The VA gynecologist added that the methods used during the tubal ligation were not relevant because the purpose of the procedure was accomplished. The Veteran has reported no treatment for residuals of the tubal ligation during the pendency of the appeal. To be sure, the Board is not weighing that against the Veteran, only establishing that there are no medical records outside the VA examinations that could help show a currently diagnosed disability. As previously stated, a necessary element for establishing entitlement to service connection is the existence of a current disability. Brammer, 3 Vet. App. 223, 225 (1992). For VA purposes, a current disability exists when a claimant has a disability at the time a claim is filed or at some point during the pendency of that claim. McClain, 21 Vet. App. 319, 321 (2007). Here, the preponderance of the evidence shows the Veteran does not have current residuals of the in-service tubal ligation that cause an impairment in earning capacity. While the Board can review the lay and medical evidence of record, including the Veteran's reported symptoms, the Board cannot aggregate the reported symptoms and provide a diagnosis. Further, the lay and medical evidence has shown no disability that causes an impairment in earning capacity. The Board understands and sympathizes that the procedure performed was not the one she hoped for and she claims the disability is not necessarily the infertility but the inability to undergo a reversal. However, there is no indication that had she had the other procedure that a reversal would have been performed or been successful. In other words, there is no clear but-for causation and the claimed disability would require speculation. See e.g. Spicer v. McDonough, 2021 US App. Vet. Claims LEXIS 1634(September 2021). The Board finds the June 2021 VA examiner's opinions probative and consistent with the lay evidence. The VA examiner's opinions provided a rationale and adequately took into consideration the objective medical evidence of record, lay evidence, and the contemporaneous examinations of the Veteran and found no residuals of the in-service tubal ligation. As such, the VA examiner's opinion provides an adequate basis for the Board to form a fully informed decision. After a full review of the record, the Board finds that the weight of the evidence demonstrates that the Veteran does not have current residuals of the in-service tubal ligation for the reasons discussed above. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Service connection for a Bilateral Leg Disability. The Veteran contends that service connection is warranted for a bilateral lower extremity disability, to include shin splints. After review of the evidence, both lay and medical, the Board finds additional development of the record is necessary to allow for a fully informed decision. In pertinent part, the November 2020 Board Decision granted service connection for bilateral foot disabilities, including bilateral pes planus. A February 2020 VA examination confirmed a current diagnosis of bilateral shin splints. In an August 2021 correspondence, the Veteran has indicated that the current bilateral shin splints were the caused by the service-connected bilateral pes planus. To date, an opinion on that theory of entitlement has not been obtained, therefore, a remand is referred necessary. The matters are REMANDED for the following action: 1. Associate any VA treatment records since December 2020 with the electronic claims file. 2. After completion of the above-specified development. If possible, obtain an addendum medical opinion from an orthopedic surgeon. If an orthopedic surgeon is unavailable an appropriately qualified physician should offer the following opinion on the etiology of the Veteran's current bilateral shin splints. The examiner must indicate review of the claims file in the examination report. If the VA examiner determines that an additional examination of the Veteran is necessary to provide reliable opinions as to causation, such examination should be scheduled; however, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The examiner is asked to provide the following opinions: a) Is it at least as likely as not (50 percent probability or greater) that the current bilateral shin splints are caused by the Veteran's service-connected disabilities, to include bilateral pes planus? b) If not caused by the service-connected disabilities, is it at least as likely as not (50 percent probability or greater) that the bilateral shin splints are aggravated (worsened in severity beyond the natural progression of the disease) by the Veteran's service-connected disabilities, to include bilateral pes planus? If the VA examiner opines that the bilateral shin splints are aggravated by the service-connected disabilities, he/she should indicate the degree of disability before aggravation and the current degree of disability. A rationale should be given for all opinions and conclusions rendered. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Teague, 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.