Citation Nr: 21067598 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 18-00 878 DATE: November 4, 2021 ORDER Entitlement to compensation pursuant to 38 U.S.C. § 1151 is denied. REFFERED The issue of entitlement to service connection for a gynecological disability is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDING OF FACT Additional gynecological disability, to the extent it exists, was not the result of carelessness, negligence, lack of proper skill, error in judgment or other instance of fault on the part of VA, nor was it due to an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation pursuant to the provisions of 38 U.S.C. § 1151 have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1978 to August 1989. In May 2021, the Veteran testified before the undersigned Veterans Law Judge at a Board of Veterans' Appeals (Board) virtual hearing. A transcript of the proceeding is of record. 1. Entitlement to compensation pursuant to 38 U.S.C. § 1151 A review of the evidence of record reveals the Veteran's contentions are based on in service events. Therefore, compensation pursuant to 38 U.S.C. § 1151 must be denied. In pertinent part, section 1151 provides for compensation for a qualifying additional disability in the same manner as if such additional disability were service- connected. A disability or death is a qualifying additional disability if the disability or death was not the result of the Veteran's willful misconduct and (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, and (2) the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. See 38 U.S.C. § 1151. The Veteran contends that VA failed to diagnose endometriosis while she was in service in August 1978 and that this led to a hysterectomy and/or salpingo-oophorectomy in 1998. She also contends that VA failed to administer a RhoGAM shot after a uterine suction curettage procedure in October 1978, and that this led to isoimmunization and also led to her eventual hysterectomy and/or salpingo-oophorectomy in 1998. See, e.g., April 2015 correspondence; May 2021 hearing transcript (discussing salpingo-oophorectomy); but see May 2021 hearing transcript, page 13 (indicating she was seen at a private emergency room in August 1978). In essence the Veteran contends her post service gynecological issues, including her eventual hysterectomy are the long-term consequences of endometriosis and the October 1978 procedure, which were both purportedly incurred in service. Specifically, the Veteran contends her current endometriosis initially manifest in service, but was not diagnosed, and that she should have been given a RhoGAM shot within 72 hours of an in-service abortion in October 1978. See April 15, 2015 statement, "Exhibit 1"; see also May 2021 hearing transcript (addressing miscarriages and additional procedures in service, including DNC and tubal ligation). The evidence of record indicates the October 1978 procedure did not occur at a VA facility. See October 13, 1978 service treatment record (performed at U.S. Air Force hospital at Mather AFB). Nevertheless, to the extent it or any other of the Veteran's contentions are related to VA treatment, the Veteran has consistently reported that the underlying events occurred while in service. Notably, the Veteran's claims file reveals she did not receive post-service VA treatment or care until more than a decade after her 1998 hysterectomy. "The factual premise underlying section 1151 claims, by the very language of the statute, does not include a disability that took place in service but is, in fact, linked to treatment after service." Trafter v. Shinseki, 26 Vet. App. 267, 284 (2013) (Hagel, concurring). Here, the Veteran contends her alleged additional disabilities are due to events that occurred in service. Furthermore, consistent with the Veteran's contentions, there is no evidence that any alleged additional disability is related to post-service VA care, treatment or examination. Accordingly, the Veteran's claim must be denied. REASON FOR REFERRAL As touched on during the Veteran's hearing, the undersigned considers the Veteran to have sought compensation upon two separate legal bases, one under 38 U.S.C. § 1151 and the other pursuant to 38 U.S.C. § 1131, i.e. entitlement to service connection for a gynecological disability. See May 2021 hearing transcript, pages 3-6; September 2016 VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits (listing loss of creative organs, failure to provide RhoGAM shot, and benefits under 38 U.S.C. § 1151 as separate disabilities on form). Although compensation awarded under 38 U.S.C. § 1151 is paid in the same manner as if such additional disability were service connected, compensation under 38 U.S.C. § 1151 and 38 U.S.C. § 1131 (or § 1110) are in fact, two separate and distinct claims that involve different laws and regulations. See Anderson v. Principi, 18 Vet. App. 371, 377 (2004) ("In other words, the appellant may have two separate claims for the same condition based upon separate legal bases . . ."). Here, the Agency of Original Jurisdiction did not adjudicate the Veteran's claim pursuant to 38 U.S.C. § 1131. See November 2016 rating decision and October 2017 statement of the case. The issue of entitlement to service connection for a gynecological disability is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. See Young v. Shinseki, 25 Vet. App. 201, 203 (2012). The Board withholds judgement on whether the September 2016 VA Form 21-526EZ constitutes an application to reopen claims denied in a June 2013 rating decision. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gregory T. Shannon, 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.