Citation Nr: 21077281 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-05 025A DATE: December 29, 2021 ORDER New and material evidence having been received, the appeal for entitlement to service connection for cysts is reopened. Entitlement to service connection for status post right salpingo-oophorectomy for serous cystadenoma is granted. REMANDED Entitlement to service connection for a gynecological disability other than status post right salpingo-oophorectomy for serous cystadenoma, to specifically include status post hysterectomy and pelvic inflammatory disease, is remanded. FINDINGS OF FACT 1. In an October 2010 rating decision, the agency of original jurisdiction (AOJ) denied entitlement to service connection for cysts; the Veteran did not appeal this determination, nor was new and material evidence received within a year. 2. The evidence pertaining to the Veteran's cysts, submitted after the October 2010 AOJ denial is not cumulative or redundant of evidence of record at the time of the prior denial, relates to unestablished facts necessary to substantiate the claim, and raises reasonable possibilities of substantiating the claim. 3. The Veteran's status post right salpingo-oophorectomy for serous cystadenoma is at least as likely as not is incurred in or related to service. CONCLUSIONS OF LAW 1. The AOJ's October 2010 denial of the claim for service connection for cyst is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 2. As additional evidence received since the AOJ's October 2010 denial is new and material, the criteria for reopening the claim for service connection for cysts are met. 38 U.S.C. §§ 1110, 1131, 5100, 5102, 5103, 5103A, 5107, 5108; 38 C.F.R. §§ 3.156, 3.159. 3. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for status post right salpingo-oophorectomy for serous cystadenoma have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1988 to October 1992. This matter is on appeal from December 2014 and July 2015 rating decisions. The Veteran testified before the undersigned Veterans Law Judge during a July 2021 hearing. The Board has reopened the Veteran's appeal, and recharacterized it as one for multiple chronic gynecological disabilities, given the diagnoses of record. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). The evidence is sufficient to grant entitlement to service connection for her right salpingo-oophorectomy residuals at this time. Additional evidentiary development is needed to resolve open medical questions as to whether additional gynecological conditions can also be related to service or to her oophorectomy residuals. New and Material Evidence has been Received Sufficient to Reopen the Veteran's Service-Connection Claim for Cysts. The AOJ originally denied the Veteran's service-connection claim for cysts in an October 2010 rating decision, in pertinent part based on findings that the evidence showed that the condition neither occurred in, nor was caused by service. The Veteran filed a notice of disagreement in July 2011 and a statement of the case was issued in March 2014. The Veteran did not perfect her appeal, nor did she submit new and material evidence within a year of the AOJ's decision. As such, the October 2010 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Since the October 2010 rating decision, evidence added to the record includes a positive nexus opinion linking the Veteran's status post right salpingo-oophorectomy for serous cystadenoma to service. The Board finds such evidence to be new and material under the provisions of 38 C.F.R. § 3.156. The appeal is accordingly reopened. Entitlement to service connection for status post right salpingo-oophorectomy for serous cystadenoma is granted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). 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 the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b)." When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A pre-existing disease or injury will be considered to have been aggravated by military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). The Veteran acknowledges that she underwent a laparoscopic procedure in August 1987 and another procedure in October 1987 for her pelvic inflammatory disease prior to service. However, she claims that she fully recovered from the condition prior to entering service and that her current gynecological disabilities began in or are related to service, or any pre-existing gynecological condition worsened during service. Service treatment records include a February 1988 entrance report of medical history, that indicated that the Veteran had been treated for a female condition. She underwent a laparoscopy to rule out endometriosis. There was a reference to laparoscopic surgery in August 1987 to rule out endometriosis due to abdominal cramps. She had cramps with each menstruation but did not go to bed with them. They usually lasted one day. A February 1988 report of medical examination noted that a Veteran had a diagnosis of chronic pelvic inflammatory disease. She underwent laparoscopic and laser conization and laser vaporization of condyloma. There was condylomatous dysplasia, CIN 1, chronic cervicitis with squamous metaplasia. A November 1988 record noted that the Veteran was a 20-year-old with history of CIN I and condyloma acuminatum with chronic pelvic inflammatory disease. She was status post laparoscopic and laser conization and laser vaporization of condyloma (8-87). She had complaints of vaginal itching and discomfort for one week. An examination revealed vaginal mucosa with pink and milky white discharge and a large 5 x 5 mass on right side that was mildly tender to palpation. The assessment was right adnexal mass that was most likely scar tissue. It was noted, "R/O PID vs vaginitis". In March 1989, she had complaints of pain in the left side, a long history of chronic pelvic inflammatory disease and pelvic adhesions with continuous chronic pelvic pain. In April 1989, she reported abdominal pain and adhesions with continuous chronic pelvic pain. In September 1989, she had two pustules in the right perivulvar area with tenderness to palpation. She was assessed with folliculitis. An emergency treatment record dated in September 1989 noted complains of vaginal itching for 1.5 weeks with an assessment of vaginitis. Another emergency treatment record noted a tender 2 cm mass at right adnexa. The assessment was ovulatory cyst on the right and yeast vaginitis. In April 1990, her abdominal pain spread to both sides with some bleeding. The assessment was abdominal/pelvic pain. An April 1990 pelvic ultrasound showed that the uterus appeared to be relatively normal and appeared to empty. The adnexal regions demonstrated no abnormality. The right ovary measured 2.2 x 2 cm while the left measured 3 x 1.2 cm. There was no evidence of free pelvic fluid. No mass was identified. There was no demonstrable mass or other abnormality. In December 1990, she was seen for left upper quadrant pain. In December 1990, she stated that she had a cyst on right ovary but had pain on the left side. She had intermittent sharp left lower quadrant pain for 4 days. The provider noted that it was possible that she had an ovarian cyst before and underwent laparoscopy in 1986. The record reflected that the Veteran was unsure if she has ever had pelvic inflammatory disease. The left ovary was normal, while the right ovary showed a 5 cm firm cyst with slight tenderness and fullness. A January 1991 record noted her prior medical history and included an assessment of left ovarian cyst with probable right ovarian cyst. A February 1991 record indicated that the Veteran was being seen for infertility. The record noted that she usually had regular menses every 30 days with some dysmenorrhea. She had a had a history of laparoscopy for pelvic pain revealing bilateral adhesions. She underwent laser cauterization for CIN I and vaginal and vulval condyloma at the same time. An April 1991 record showed "normal uterine cavity ". On July 1992 report of medical history, the Veteran indicated that she had been treated for herpes. Importantly, the Veteran's pelvic inflammatory disease was noted on entry into active service in February 1988. Therefore, the Veteran is not presumed sound on entry with respect to pelvic inflammatory disease, as discussed in further detail in the Remand section below. The Board initially finds that the Veteran's presumption of soundness is not rebutted as it pertains to status post right salpingo-oophorectomy for serous cystadenoma. As noted above, to rebut the presumption of soundness, evidence must show that the veteran's disability both clearly and unmistakably pre-existed service and clearly and unmistakably was not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In this case, the Veteran's service treatment records include a diagnosis of right ovarian cyst in January 1991. No additional context to the origin of the disability was provided. Post service private treatment records show that the Veteran underwent a right salpingo-oophorectomy in August 2006. During her hearing, the Veteran claimed that she had a huge cyst that had to be removed while she was stationed in Germany and underwent two or three more procedures to remove the cysts. See Hearing Transcript, pg. 5. On September 2013 VA examination, the Veteran was diagnosed with recurrent ovarian cyst status post oophorectomy. The examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. However, the examiner specifically acknowledged that the Veteran was treated for ovarian cysts in service and stated that she was directed to answer the question solely as if the Veteran's condition began prior to service. In a July 2015 VA opinion, a different examiner found that the Veteran's claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the current condition of status post right adnexal mass diagnosed by pathology as serous cystadenoma was evaluated as early as year 1990 when claimant was seen for right ovarian cyst/pain. In an August 2015 VA opinion, the same examiner confirmed the opinion that it was at least as likely as not that the current diagnosis of status post right salpingo-oophorectomy for serous cystadenoma was related to the service assessments in years 1988, 1989 and 1991 of ' right ovarian cyst' and 'right adnexal mass that measures about 5 x 5', among multiple other medical notes documenting a right adnexal condition. In contrast, in a September 2015 opinion, a different examiner opined that the Veteran's abdominal hysterectomy and right salpingo-oophorectomy for serous cystadenoma was less likely than not [less than 50% probability] proximately due to or related to claimed gynecological conditions: functional ovarian cysts, vaginitis, chronic PID or UTIs during her active duty service. The examiner cited to a reference that indicated that adnexal mases were common in females. The Board finds the September 2015 opinion to be of limited probative value as the examiner merely cited to a reference that indicated that adnexal masses were common in females, without any further explanation regarding this Veteran's current condition of right salpingo-oophorectomy for serous cystadenoma or its relationship, if any, to service. The favorable July and August 2015 VA opinions provided adequate rationale specifically based on the Veteran's medical record and have significant probative value. Additionally, if VA is unable to rebut the presumption of soundness, the claim becomes one for service connection based on incurrence of disability in service. In light of the Veteran's lay testimony indicating that she experienced ovarian cysts during and after service, her documented medical history of being treated for cysts during service, medical records showing that she underwent a right salpingo-oophorectomy in August 2006, and the July and August 2015 VA opinions indicating that the Veteran's status post right salpingo-oophorectomy for serous cystadenoma was at least as likely as not (50 percent or greater probability) incurred in or caused by service and the treatment noted therein, the Board finds that the evidence is at the very least in equipoise as to whether it was incurred during or caused by service. Resolving all doubt in favor of the Veteran, the claim for service connection for status post right salpingo-oophorectomy for serous cystadenoma is granted. (Continued on Next Page) REASONS FOR REMAND Entitlement to service connection for a gynecological disability other than status post right salpingo-oophorectomy for serous cystadenoma, to specifically include status post hysterectomy and pelvic inflammatory disease, is remanded Service treatment records reflect that the Veteran was treated for multiple gynecological conditions during service as outlined in detail in the above decision. Although the evidence of record is sufficient to establish a direct relationship between the Veteran's right salpingo-oophorectomy for serous cystadenoma and her service, there remain open medical questions pertaining to whether service-connection can be awarded for other gynecological conditions, to include status post hysterectomy. In addition, there is ambiguity in the record as to whether pelvic inflammatory disease, which was noted on her examination upon entry into service, remains a current disability, or has manifested in residuals that can be considered service-related. Private treatment records show that the Veteran underwent a total hysterectomy in August 2006. A statement from Dr. L. showed that the Veteran was diagnosed with pelvic pain/pressure, chronic urinary tract infections and candidiasis beginning on June 26, 2012 with continuous reoccurrence since then. July 2014 treatment records from Westover Hills Family Health Center included candidal vulvovaginitis, candidiasis, and frequency of urination in a reviewed problems list in the record. During her hearing before the Board, the Veteran reported that she experienced infertility for which she received treatment for in service. She had two miscarriages, one in 1992 while in service and another one shortly after she was discharged from service in 1993. She indicated that her infertility issues and scarring were related to her endometriosis. See Hearing Transcript, pgs. 3-6. She claimed that during service, she had extremely heavy bleeding and pain that led to her undergoing a hysterectomy when she was 38 years old. She also reported that symptoms such as pelvic and back pain, numerous bladder infections, mood swings, and anxiety have continued since she was in service. She alleged that these symptoms contributed to her necessitating a hysterectomy. She explained that she went into a menopausal state at a very early age with irritable moods. Id. In a July 2015 VA examination, the Veteran reported current symptoms such as painful intercourse, frequent yeast infections, and discomfort in the pelvic region. In an associated August 2015 opinion, the examiner found that the claimed condition, if referring to pelvic inflammatory disease, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner reasoned that the Veteran's chronic pelvic inflammatory condition pre-existed service as shown by a laparoscopy in 1987 prior to the service. The examiner noted that the Veteran continued to have abdominal pain that increasingly worsened during throughout military service in years 1988, 1989, 1990, and 1991 that was as likely as not related to the previously diagnosed pelvic inflammatory disease that was aggravated by service. However, the Board notes that in the associated VA examination report, the examiner indicated that the Veteran had never been diagnosed with pelvic inflammatory disease. Also, the examiner stated that she was unable to provide an opinion about the hysterectomy without resorting to mere speculation. Given this contradiction and inability to provide an opinion, the AOJ sought another medical opinion. In a September 2015 opinion, the examiner found that the Veteran's abdominal hysterectomy was less likely than not [less than 50% probability] proximately due to or related to claimed gynecological conditions: functional ovarian cysts, vaginitis, chronic pelvic inflammatory disease or UTIs during her active duty service. The examiner cited to a reference that indicated that adnexal masses were common in females, without any further explanation as to how that related to the Veteran undergoing a hysterectomy. The opinion also did not clarify whether or not the Veteran had a current diagnosis of pelvic inflammatory disease. As the VA examiner provided conflicting information in August 2015 and did not provide adequate rationale in September 2015, in order to resolve this claim, a medical opinion is needed to clarify all current disabilities apart from her now service-connected oophorectomy residuals, and address whether any are related to service or to service-connected disability. The matters are REMANDED for the following actions: 1. Obtain any outstanding records of pertinent medical treatment from VA or private health care providers. With the Veteran's assistance, obtain copies of any pertinent records and add them to the claims file. 2. Schedule an appropriate VA examination to help determine the nature and etiology of any gynecological disorder other than her service-connected status post right salpingo-oophorectomy for serous cystadenoma. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is asked to address the following: a) List all disabilities present since February 2015 relating to the Veteran's gynecological system, other than status post right salpingo-oophorectomy for serous cystadenoma. Such disabilities would include her status post hysterectomy. Please specifically clarify whether the Veteran has had a diagnosis of pelvic inflammatory disease since February 2015. In discussing current disabilities, please indicate whether reference in the record to post-service treatment for candidal vulvovaginitis, chronic urinary tract infections, and candidiasis with symptoms of pelvic pain/pressure, back pain, bladder infections, mood swings/anxiety, and painful intercourse are symptoms of her service-connected status post salpingo-oophorectomy for serous cystadenoma, or are manifestations of one or many separate stand-alone gynecological disabilities. b) If the Veteran has a current diagnosis of pelvic inflammatory disease since February 2015, please recognize that such was identified as present on examination upon entry into service, and opine whether it is at least as likely as not (approximately 50 percent or more probability) that such increased in disability during her period of active duty. If so, is it clear and unmistakable (i.e., undebatable), that such increase in disability was due to the natural process of the disease? c) For each identified gynecological condition other than pelvic inflammatory disease (and other than status post right salpingo-oophorectomy for serous cystadenoma), including but not limited to, status post abdominal hysterectomy, opine whether it is at least as likely as not (approximately 50 percent or greater probability) that such was incurred in, or is otherwise related to injury or disease during active duty service. d) If not incurred in, or related to service, opine whether each identified gynecological condition other than pelvic inflammatory disease, including but not limited to, status post abdominal hysterectomy, is at least as likely as not (50 percent or greater probability) caused or aggravated by the Veteran's service-connected status post right salpingo-oophorectomy for serous cystadenoma and unspecified anxiety disorder. **The examiner should specifically address the service treatment records outlined in the decision above and the Veteran's hearing testimony indicating that symptoms such as pelvic and back pain, numerous bladder infections, mood swings, and anxiety have continued since she was in service and contributed to her necessitating a hysterectomy. See Hearing Transcript, pgs. 3-6. The examiner should also consider that a February 1995 report of medical history noted that she had irregular periods related to stress and the findings of prior VA examiners. The rationale for all opinions expressed should be provided. 3. Then readjudicate the issue on appeal. If the benefit sought remains denied, send the Veteran and her representative a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Crohe, 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.