Citation Nr: 21071438 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 13-20 239 DATE: November 30, 2021 ORDER Entitlement to service connection for residuals of a hysterectomy is denied. Entitlement to service connection for a painful abdominal scar, to include as secondary to a hysterectomy, is denied. Entitlement to service connection for incontinence, to include as secondary to a hysterectomy, is denied. Entitlement to special monthly compensation (SMC) based on anatomical loss of use of a creative organ is denied. FINDINGS OF FACT 1. The Veteran has not been shown to have residuals of a hysterectomy that manifested in service or that are otherwise causally or etiologically related to her military service. 2. The Veteran does not have an abdominal scar or urinary incontinence that manifested in service or that is otherwise related to her military service or to a service-connected disability. 3. The Veteran does not have loss of use of a creative organ due to a service-connected disability. CONCLUSIONS OF LAW 1. Residuals of a hysterectomy were not incurred in active service. 38 U.S.C. §§ 1110, 1154; 38 C.F.R. §§ 3.102, 3.303. 2. A painful abdominal scar was not incurred in active service and is not proximately due to or, the result of, or aggravated by service and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. Incontinence was not incurred in active service and is not proximately due to or, the result of, or aggravated by service and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for SMC for loss of use of a creative organ are not met. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1988 to March 1992. This matter come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). In March 2012, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO. In June 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. Transcripts of the hearings have been associated with the record. In an October 2020 letter, the Board notified the Veteran that she may request a virtual tele-hearing instead of waiting for a travel board hearing; however, this letter was sent in error, as the record shows that the Veteran has not requested a second hearing. See Quinn v. Wilkie, 31 Vet. App. 284 (2019) and October 2020 Board memorandum. Based on the foregoing, there is no outstanding hearing request. In August 2018 and November 2020, the case was remanded for further development. That development was completed, and the case has subsequently been returned to the Board for appellate review. The Board also notes that the Veteran's appeal originally included the issue of entitlement to service connection for a bilateral foot disorder. In a February 2021 rating decision, the AOJ granted service connection for bilateral pes planus with bilateral plantar fasciitis. The AOJ's grant of service connection constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Therefore, that matter is no longer on appeal and no further consideration is necessary. Law and Analysis The Board had previously remanded the case, in part, to obtain an adequate VA medical opinion. In November 2020, the Board remanded the case to the AOJ for an additional VA medical opinion because the February 2020 VA examiner appeared to have based her opinion on an inaccurate or incomplete factual premise. In this regard, the examiner stated that the Veteran's hysterectomy was performed in 2013, whereas the Veteran's post-service medical records include a February 2003 surgical pathology report that noted an assessment of a supracervical hysterectomy of the uterus. Thereafter, another VA medical opinion was obtained in February 2021 that was based on an accurate factual premise. With regard to the prior remands, the Board finds that the AOJ substantially complied with the directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance would be required, not strict compliance). Indeed, any inadequacies with the prior VA medical opinions were rectified when the adequate February 2021 VA medical opinion was obtained. The Veteran has not contended otherwise. The Veteran has not raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Residuals of a Hysterectomy The Veteran has claimed that two in-service abortions led to symptoms that ultimately required or necessitated a hysterectomy. During a March 2012 DRO hearing, the Veteran stated that she voluntarily elected to have a hysterectomy to treat her heavy, painful menses that had bothered her since she was a teenager during service. The Veteran indicated that "perhaps: her two in-service abortions caused her heavy menses. She related that the first abortion, in particular, was more severe as it was a late-term dilation and curettage (D&C) procedure. During a June 2016 Board hearing, the Veteran reported that she became pregnant twice and had two abortions during service. She related that she was in her second trimester for the first abortion, that it was a long, advanced abortion, and that it took her awhile to heal. She indicated that her menstrual cycles never returned to normal after the first abortion and noted that they were irregular and unpredictable. Thereafter, she spoke to a gynecologist about a hysterectomy to treat her menorrhagia and dysmenorrhea. The Veteran stated that the gynecologist told her that there were lots of reasons that could have caused the menorrhagia and dysmenorrhea, but one of the reasons could be scar tissue from the abortions in service. During a January 2017 VA gynecological examination, the Veteran reported having irregular and heavy menses since she had two abortions during service in approximately 1989. She stated that she had excessively heavy menses over the years and irregularity, which seemed to worsen over time, and she had a hysterectomy for menorrhagia and dysmenorrhea in February 2003. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to service connection for residuals of a hysterectomy. The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of menorrhagia, dysmenorrhea, or any menstrual irregularity or disorder. In fact, in an October 1988 enlistment report of medical history, the Veteran reported that she had not been treated for a female disorder and had no change in her menstrual pattern. In the corresponding enlistment examination dated in October 1988, a normal pelvic examination was reported. The examining medical officer indicated that a pap was completed, and the results were hemoccult negative. An April 1989 gynecology note indicated that the Veteran had a normal pelvic examination. However, the Board does note that the Veteran was evaluated for pregnancies in May 1989, July 1990, October 1990, and June 1991. The May 1989 and July 1990 pregnancy tests were positive. In a February 1992 service treatment record, the Veteran indicated that she had two pregnancies, no deliveries, and two miscarriages or abortions. She also denied having bleeding between periods or after intercourse and indicated that she was taking oral contraceptives. Following her military service, a September 2000 private treatment record documented that the Veteran was evaluated for consideration of birth control. The Veteran described having slightly irregular periods with intermittent heavy and light flow and cramping. Notably, she stated that this had been her normal pattern for her entire life and that she did not consider it a problem. For these reasons, the Board finds that the Veteran did not have menorrhagia, dysmenorrhea or any menstrual irregularity or disorder that manifested in service. In a November 2002 private treatment record, the Veteran reported that she had heavy menses that lasted up to nine days and that she sometimes had severe cramps. She stated that she used oral contraceptives in the past, but that they did not help with her menses. The Veteran indicated that she was considering a hysterectomy secondary to menorrhagia and dysmenorrhea and that she did not want oral contraceptives. In a December 2002 private consultation to discuss hysterectomy questions, the Veteran reported that she had very heavy, prolonged menses with severe cramping at times. She indicated that she had premenstrual spotting for two to three days followed by four days of extremely heavy bleeding and then lighter bleeding past the heavy phase. The Veteran noted that her periods lasted approximately nine to ten days each cycle. She stated that she wanted to pursue a hysterectomy and that she did not want to try oral contraceptives due to the side effects and not wanting conservative treatment. The physician discussed the pros and cons of the different types of hysterectomies and explained the anatomy of the pelvis and fibroids. A pelvic ultrasound was scheduled, and consideration of a supracervical hysterectomy in February 2003 was noted. A January 2003 private pelvic sonogram report noted that the Veteran had a history of prolonged heavy menses and a questionable posterior uterine fibroid on pelvic examination. A transvaginal sector real-time examination showed a retroflexed uterus of normal size with unremarkable contours. There was a small ill-defined hypoechoic zone seen in the left posterior uterine body that measured approximately one centimeter in maximum dimension, which the interpreting physician noted could represent a small subserosal fibroid. No solid or cystic adnexal mass was seen. A January 2003 private treatment record (which the Board notes was mistakenly dated in January 2002) indicated that a pelvic ultrasound showed findings consistent with a small fibroid and ovaries within normal limits. In a February 2003 private history and physical examination, the Veteran's admitting diagnosis was menorrhagia and dysmenorrhea. Her past medical history included one uncomplicated vaginal birth in 1997 and two terminations. The physician indicated that the Veteran complained of progressive dysmenorrhea and menorrhagia when she was evaluated during an assessment in 2002. The Veteran reported that her menstrual cycles were lasting up to nine days and sometimes she had such severe cramping that she was forced to leave work. She had used oral contraceptive therapies in the past, which did not help with her menstrual cycles. The Veteran stated that she did not wish to continue oral contraceptive therapy due to side effects. The physician noted that an ultrasound was performed for suspicions of a uterine fibroid. The physician stated that the Veteran did have a small lesion in the posterior uterine body, which was consistent with a probable small fibroid or adenomyosis. The physician stated, "[...the Veteran] desires definitive surgery. She has been adequately counseled to the alternatives to surgery and elects for a supracervical hysterectomy." The Veteran was admitted for a supracervical hysterectomy, and the physician stated that the Veteran understood the risks of the procedure and the alternatives. A February 2003 private surgical report noted that the Veteran underwent a supracervical hysterectomy. The preoperative diagnosis was menorrhagia and dysmenorrhea with suspected uterine fibroids. A February 2003 private surgical pathology report noted that the Veteran was diagnosed with menorrhagia, dysmenorrhea, and possible uterine fibroid versus adenomyosis. The Veteran's uterus specimen was negative for neoplasm or adenomyosis. In an October 2009 VA pelvic ultrasound report, it was noted that the Veteran had a hysterectomy in 2002 for abnormal uterine bleeding (DUB) and that she reported intermittent vaginal spotting and urine incontinence. The ultrasound showed normal appearing ovaries, and the uterus was surgically absent, post-hysterectomy. During a January 2017 VA gynecological examination, the Veteran reported having irregular and heavy menses since she had two abortions during service in approximately 1989. She stated that she had excessively heavy menses over the years and irregularity, which seemed to worsen over time. Since her hysterectomy for menorrhagia and dysmenorrhea in February 2003, she indicated that she had a slight pink discharge for a few years, but none in recent years. She denied having any symptoms related to the hysterectomy, except a scar. The January 2017 VA examiner opined that the Veteran's hysterectomy for abnormal uterine bleeding was less likely than not due to her military service. The examiner noted that the Veteran's abnormal uterine bleeding was not documented in her service treatment records and that she did not have endometriosis. The examiner explained that abortions are not a recognized cause or risk factor for chronic abnormal uterine bleeding, or menorrhagia, according to Mayo Clinic Health Information. The examiner stated that there was no mechanism for a D&C to cause long-term irregularity or severity of menstrual bleeding. During a February 2020 VA gynecological examination, the VA examiner reported that the Veteran had a hysterectomy in 2013 and that she had a residual scar. The examiner also noted that the Veteran was diagnosed with a uterine fibroid in 2003. The examiner referenced a preoperative note in 2013 in which the physician noted that an ultrasound was performed due to suspicions of a uterine fibroid. The note indicated that the Veteran did have a small lesion in the posterior uterine body, which was consistent with a probable small fibroid or adenomyosis. The note also documented that the admitting diagnosis was symptomatic menorrhagia and dysmenorrhea and that the discharge diagnosis was menorrhagia and dysmenorrhea and a probable adenomyosis versus uterine fibroids pending final pathology. The note showed that a supracervical hysterectomy was performed. During the February 2020 VA examination, the Veteran reported an onset of menorrhagia and dysmenorrhea at age 14, and she reported a long history of menorrhagia with painful periods. She stated that she had a supracervical hysterectomy in February 2013 for heavy, painful menses and suspected fibroid and that she had no current symptoms from the hysterectomy. She stated that she had normal post-hysterectomy pap smears. The examiner noted that the Veteran had urinary incontinence due to an unknown cause. The examiner also noted that the Veteran had not been diagnosed with endometriosis or any pelvic organ prolapse due to injury, disease, or surgical complications of pregnancy. The examiner did note that the Veteran had a scar. The Veteran reported that she avoided certain stretching movements, which caused pinching of the scar, but that it was generally not painful. The February 2020 VA examiner opined that the Veteran's hysterectomy was less likely than not caused by service. The examiner related that surgical notes stated that the hysterectomy was performed in 2013 for reasons of heavy menses, dysmenorrhea, and uterine fibroid. She noted that the Veteran reported an onset of heavy menses and dysmenorrhea at age 14 and that the fibroid was found on ultrasound in 2003. The examiner explained that fibroids may aggravate heavy menses and dysmenorrhea, but none of these onset dates would implicate her in-service abortions or other events during active duty from 1988 to 1992 as the precipitating cause of her hysterectomy. In November 2020, the Board remanded the case to the AOJ for an additional VA medical opinion because the February 2020 VA examiner appeared to have based her opinion on an inaccurate or incomplete factual premise. Specifically, the examiner stated that the Veteran's hysterectomy was performed in 2013, whereas the Veteran's post-service medical records include a February 2003 surgical pathology report that notes as assessment of a supracervical hysterectomy of the uterus. Thereafter, in a February 2021 VA medical opinion, a VA examiner noted that the available records did not support the Veteran's contentions that her two in-service abortions necessitated her February 2003 hysterectomy to address irregular menstrual bleeding. He stated that no evidence was found to suggest that her two in-service abortions necessitated her 2003 hysterectomy, nor was a reasonable pathophysiologic nexus identified. Rather, he indicated that the evidence of record showed that the hysterectomy was an elective procedure, as noted in a 2003 pre-operative report. He noted that the report stated, "She has been adequately counseled to the alternatives to surgery and elects for a supracervical hysterectomy." Regarding uterine fibroids, the examiner stated that the February 2003 surgical pathology report made no mention of uterine fibroids. Further, as discussed in the February 2020 VA opinion, the examiner noted that surgical notes states that the Veteran reported an onset of heavy menses and dysmenorrhea at age 14, which suggested preexisting irregularities. There is no medical opinion otherwise showing that the Veteran's two in-service abortions led to symptoms that ultimately required or necessitated a hysterectomy. The Board acknowledges the Veteran's statements that she believed that her in-service abortions led to heavy, painful menses that necessitated a hysterectomy. However, the Veteran is not competent to provide a nexus opinion regarding the nature and etiology of her hysterectomy. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the diagnosis and etiology of residuals of a hysterectomy falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The question of etiology goes beyond a simple and immediately observable cause-and-effect relationship, particularly in light of the other potential causes. Moreover, even assuming the Veteran's lay assertions regarding etiology are competent, the Board nevertheless finds the VA medical opinions to be more probative, as they are based on a review of the record, an examination, and the examiners' medical expertise, training, and knowledge. The examiners also supported their conclusions with rationale that considered medical literature. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for residuals of a hysterectomy, and the claim is denied. Abdominal Scar and Urinary Incontinence In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a painful abdominal scar or urinary incontinence. The Veteran has not claimed that the disorders manifested in service or are directly related to her military service. Rather, she has asserted the claimed disorders are secondary to her residuals of a hysterectomy. There is also no evidence showing otherwise. A January 2017 VA examiner noted that the Veteran's painful abdominal scar was at least as likely as not proximately due to or the result of the Veteran's hysterectomy. Similarly, in a February 2021 VA opinion, the examiner noted that the Veteran did have a suprapubic surgical scar. However, the Veteran is not service-connected for the residuals of a hysterectomy. In addition, the January 2017 VA examiner opined that the Veteran's urinary incontinence was less likely than not due to the hysterectomy. Rather, the medical evidence of record showed that the Veteran had an onset of incontinence in approximately 2007, per a VA urology note dated in 2008. The examiner stated that the incontinence was due to pelvic flood syndrome of an unknown cause. The February 2021 VA examiner also noted that mild urinary incontinence was reported, but it was not viewed as a residual of hysterectomy, as a reasonable pathophysiologic nexus was not identified. The examiner related that other causes included pelvic floor syndrome per a 2008 VA urology consultation and/or childbirth, as the Veteran had a vaginal delivery in 1997. Secondary service connection can only be granted for disabilities that are caused or aggravated by service-connected disabilities. Because the Veteran is not service-connected for the residuals of a hysterectomy, service connection is not warranted for these other disorders on a secondary basis. SMC Based on Loss of Use of a Creative Organ SMC is available if a veteran, as a result of a service-connected disability, has lost the use of a creative organ. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). In this case, the Veteran had a hysterectomy, but service connection has not been established for residuals of a hysterectomy. There is no evidence showing that she has loss of use of a creative organ due to any of her service-connected disabilities. As such, SMC for loss of use of a creative organ is not warranted. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Osegueda, 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.