Citation Nr: 21072717 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-49 671 DATE: December 6, 2021 ORDER Entitlement to service connection for a total abdominal hysterectomy (TAH) is granted. Entitlement to service connection for depressive disorder with anxiety, as secondary to a total abdominal hysterectomy, is granted. REMANDED Entitlement to service connection for residual muscle damage, as secondary to a total abdominal hysterectomy, is remanded. FINDINGS OF FACT 1. The evidence of record does not satisfactorily prove or disprove that the Veteran's in-service total abdominal hysterectomy was medically necessary. 2. The Veteran's depressive disorder with anxiety is proximately due to her total abdominal hysterectomy. CONCLUSIONS OF LAW 1. The criteria for service connection for a total abdominal hysterectomy are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for depressive disorder with anxiety, as secondary to a total abdominal hysterectomy, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1993 to August 1994. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in August 2021 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. The Board notes that service connection for a total abdominal hysterectomy was previously denied in a June 1996 rating decision. However, since such denial, additional relevant service treatment records have been associated with the record. Under 38 C.F.R. § 3.156 (c), VA will reconsider a previously denied claim de novo if relevant service records are received any time after such decision. The Board finds that the additional service treatment records constitute relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. As such, the Veteran's claim will be reconsidered as opposed to requiring the submission of new and material evidence. 38 C.F.R. § 3.156 (c). Therefore, the issue has been recharacterized accordingly. Service Connection 1. Entitlement to service connection for a total abdominal hysterectomy. The Veteran seeks entitlement to service connection for a total abdominal hysterectomy that she underwent during service. In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); 38 C.F.R. § 3.303. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Masors v. Derwinski, 2 Vet. App. 181 (1992). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). First, service treatment notes indicate the Veteran underwent a total abdominal hysterectomy during service in June 1994. A July 2017 VA medical opinion indicates the examiner reviewed the file and opined that the Veteran's hysterectomy was an elective procedure and was not medically necessary. Although the July 2017 VA examiner opined that the total hysterectomy was an elective procedure, which is the basis for the RO's denial of the Veteran's claim, the Veteran asserts it was not an elective procedure; rather, she asserts it was explained to her that the total hysterectomy would only be performed if it was determined that the mass found by her uterus was malignant and that she did not have a choice in having the surgery. Service treatment records were reviewed. The June 1994 surgical report noted that the Veteran had complained of pelvic pain for approximately three months. On examination in May 1994, the Veteran was found to have a 5 centimeter (cm.) by 8 cm. right adnexal pelvic mass, consistent with either an ovarian or tubal cyst. It was noted the Veteran was routed through preoperative evaluation, by which time the pelvic mass grew to 10 cm. by 10 cm. The operative report states that "an exploratory laparotomy to identify and evaluate this pelvic mass was clearly indicated." Additionally, a June 1994 treatment note, prior to the surgery, indicates the Veteran was assessed with a pelvic mass and the plan was a TAH/bilateral salpingo-oophorectomy (BSO). The June 1994 Request for Administration of Anesthesia and for Performance of Operations and Other Procedures, signed by the Veteran, described the procedure as "to make abdominal incision to evaluate pelvic mass, remove uterus, ovaries, and tubes. If malignancy encountered to perform staging procedures." A June 1994 note, with a time of 1300 hours, indicates that if the tumor was found to be benign, they would do a TAH/BSO and if malignant, they "would proceed to TAH/BSO....surgical staging." Then, two hours after that note was written, a note with a time reported as 1500 hours, stated that exploratory laparotomy was recommended to diagnose her pelvic tumor and the Veteran was aware that if the tumor is malignant, surgical staging would be done. However, the note then includes a statement that "at her insistence she has expressed a desire to proceed with hysterectomy and bilateral oophorectomy even if her tumor is benign." The note stated that she was electing to have a hysterectomy due to her mother and aunt having ovarian cancer. The surgical report also states that her mother, paternal grandmother, and maternal aunt were deceased at the time, due to various gynecological cancers, including ovarian, cervical, and an unknown type of gynecological cancer. During surgery, the mass was excised and a total abdominal hysterectomy with bilateral salpingo oophorectomy was performed. Lab results indicate there were no significant pathologic changes found except for a mucinous cystadenoma. A June 1994 social service consultation was conducted on the same day of surgery, noting the Veteran was emotional due to loss of autonomy, stating she said, "I have no choice." The Veteran testified in August 2021 that she was not given a choice of whether she was going to have surgery; it was not elective. She asserts she was told surgery was necessary to determine whether the mass was malignant and that she was informed a total hysterectomy would only be performed if it was determined the mass was malignant. She asserts that since discharge from service, she has lived her life believing that because the hysterectomy was performed, the mass was malignant and she had cancer during service. The Veteran also stated that she does not have a family history of ovarian cancer, noting that her mother and aunt were still alive at the time of the surgery in 1994 and they did not have ovarian cancer or any type of gynecological cancers. See September 2017 VA Form 9. The Board notes that service connection was granted for the removal of the right ovary that was performed during the June 1994 surgery as well as the surgical scar. See July 2017 rating decision. The Board finds the evidence of record does not satisfactorily prove or disprove that the Veteran's total hysterectomy was medically necessary; the treatment notes are unclear, and the Board finds the Veteran's statements that she felt as though the surgery was necessary and that she believed a hysterectomy would not be performed unless there was a malignancy are credible and have been consistent. The Board acknowledges the treatment note that indicates the Veteran chose to have a hysterectomy even if the mass was benign, as well as the July 2017 VA examiner that opined the hysterectomy was not medically necessary. Importantly, the July 2017 VA examiner failed to discuss or consider the Veteran's lay assertions that she was told the hysterectomy would not to be performed unless the mass was malignant and that she felt she was not given a choice to have surgery or not. The Court of Appeals for Veterans Claims reiterated in Wise that "[b]y requiring only an 'approximate balance of positive and negative evidence' to prove any issue material to a claim for veterans' benefits, 38 U.S.C. § 5107 (b), the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990)). Based on the Veteran's lay statements and the additional medical evidence of record, the Board resolves all reasonable doubt in her favor, and finds that the hysterectomy performed was medically necessary as a result of the pelvic mass found during service. Therefore, resolving all reasonable doubt in her favor, service connection for a total abdominal hysterectomy is warranted. 2. Entitlement to service connection for a depressive disorder with anxiety, as secondary to a total abdominal hysterectomy. The Veteran seeks entitlement to service connection for a depressive disorder with anxiety. She asserts her psychiatric disorder is proximately due to the total abdominal hysterectomy she had during service. Service connection may be granted on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish entitlement to service connection on a secondary basis, there must be evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. As service connection is being granted on a secondary basis based on causation, there is no need to discuss entitlement to service connection on a direct basis or any other basis. The question for the Board is whether the Veteran has a current disability that is proximately due to or is aggravated beyond its natural progress by a service-connected disability. As a result of this Board decision, service connection has been granted for a total abdominal hysterectomy. A May 2015 VA examination indicates the Veteran has a current diagnosis of unspecified depressive disorder with anxiety. The examiner opined that the Veteran's psychiatric disorder was at least as likely as not proximately due to or the result of her total abdominal hysterectomy. The examiner explained that the Veteran had no history of mental health problems or treatment prior to the military, and she began experiencing problems with depression and mood disturbance following an unexpected total hysterectomy at the end of her military service. The examiner concluded by saying that since that time, the Veteran has experienced mental health symptoms that continue to impact her functioning. The Board finds no adequate basis to reject the evidence of record that is favorable to the Veteran, based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). Resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence indicates the Veteran's depressive disorder with anxiety is proximately due to her now service-connected total abdominal hysterectomy. There is no evidence to the contrary. As such, the Veteran's claim is granted. REASONS FOR REMAND 3. Entitlement to service connection for residual muscle damage, as secondary to a total abdominal hysterectomy. The Veteran seeks entitlement to service connection for residual muscle damage, as secondary to a total abdominal hysterectomy. As a result of this Board decision, service connection has been granted for a total abdominal hysterectomy. Based on the medical evidence currently of record, the Board is unable to determine whether the Veteran suffers from residual muscle damage as a result of her total abdominal hysterectomy. On remand, the Veteran should be afforded a VA examination and a medical opinion should be obtained. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records. 2. Afford the Veteran a VA examination for her claimed residual muscle damage, as secondary to a total abdominal hysterectomy. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. The examiner should opine as to whether it is at least as likely as not that the Veteran has residual muscle damage that is proximately due to or aggravated (beyond a natural progression) by her total abdominal hysterectomy. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.