Citation Nr: 21006302 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 11-10 368 DATE: February 3, 2021 ORDER Entitlement to service connection for uterine fibroids, including as due to birth control pills, is denied. Entitlement to service connection for ovarian cysts, including as due to birth control pills, is denied. Entitlement to service connection for anemia, including as due to birth control pills and uterine fibroids, is denied. Entitlement to service connection for headaches, including as due to birth control pills, is denied. Entitlement to service connection for infertility, including as due to birth control pills and uterine fibroids, is denied. Entitlement to service connection for retroverted uterus, including as due to birth control pills and uterine fibroids, is denied. REMANDED Entitlement to service connection for menorrhagia, including as due to birth control pills and uterine fibroids, is remanded. FINDINGS OF FACT 1. Uterine fibroids did not manifest during service and are not etiologically related to service. 2. Ovarian cysts did not manifest during service, are not etiologically related to service, and are not secondary to a service-connected disability. 3. Anemia did not manifest during service, is not etiologically related to service, and is not secondary to a service-connected disability. 4. Headaches did not manifest during service, are not etiologically related to service, and are not secondary to a service-connected disability. 5. Infertility did not manifest during service, is not etiologically related to service, and is not secondary to a service-connected disability. 6. Retroverted uterus did not manifest during service, is not etiologically related to service, and is not secondary to a service-connected disability. CONCLUSIONS OF LAW 1. Uterine fibroids did not manifest during service and are unrelated to service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. Ovarian cysts did not manifest during service, are unrelated to service, and were not caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. Anemia did not manifest during service, is unrelated to service, and was not caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. Headaches did not manifest during service, are unrelated to service, and were not caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. Infertility did not manifest during service, is unrelated to service, and was not caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 6. Retroverted uterus did not manifest during service, is unrelated to service, and was not caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1993 to January 1999. These issues were previously denied by the Board in September 2018. The Veteran appealed that decision and in August 2019 the matters were remanded back to the Board from the United States Court of Appeals for Veterans Claims (Court) subject to a Joint Motion for Partial Remand (JMR) filed by the parties. Issues 1-6: Entitlement to service connection for uterine fibroids, ovarian cysts, anemia, headaches, infertility, and retroverted uterus. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310(a). Secondary service connection may be found in certain instances in which a service-connected disability aggravates another condition. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). The Veteran contends that service connection is warranted for ovarian cysts as well as uterine fibroids due to her use of birth control pills in service. See April 2009 claim, June 2009 statement, and August 2009 statement. She also contends that she suffered from infertility since service and had a retroverted uterus due to heavy menstrual cycles and pain during service. See March 2010 statement. She contends that headaches and anemia are due to service. See June 2010 statement. In August 2009 the Veteran stated that during service she suffered from nagging headaches associated with the pill and menstrual bloating. The Veteran also essentially claims that her disabilities are secondary to her uterine fibroids. See, e.g., June 2009 and August 2009 statements. In September 1992 upon enlistment into service, a medical prescreening form shows the Veteran was taking Ortho Novum 777 prior to entry into military service. These birth control pills were continued during her military service. The available service treatment records do not show any evidence of ovarian cysts or uterine fibroids. The service treatment records show no complaints of, or treatment for retroverted uterus, infertility, a menstrual disability, anemia, and headaches. After service, medical records including in March 2001 and September 2003 show the Veteran had uterine fibroids, in February 2006 menorrhagia and headaches, ovarian cyst in December 2007, anemia in October 2008, and infertility in October 2009. The medical evidence from National Naval Medical Center and Walter Reed Army Medical Center documents an ultrasound of the pelvis was done on April 2, 2008, and revealed bilateral follicular cysts. The adnexa and ovaries- showed no evidence of masses. A small amount of free fluid was noted. Regarding the uterine fibroids, medical evidence from National Naval Center and Walter Reed Army Medical Center notes on February 27, 2006, shows that she had a benign uterine neoplasm - a leiomyoma (fibroid). It was also noted that the Veteran had a myomectomy in 2002 with improved menstrual cycles. An ultrasound of the pelvis on April 2, 2008, revealed a fibroid uterus with no significant change from prior studies on June 20, 2007 and August 2, 2007. During the September 2009 VA examination, the examiner indicated that the claims file was reviewed. During clinical interview the Veteran reported she was prescribed Ortho Novum 777 from 1993 to 1999 for painful menstrual cycles. The VA examiner stated that it is less likely as not (less than 50/50 probability) that the Ortho Novum 777 caused or resulted in ovarian cysts or uterine fibroids. The examiner indicated that birth control pills are usually used to help alleviate discomfort from ovarian cysts and to keep them from growing. Furthermore, the examiner noted that that a saline sonogram from Walter Reed dated September 29, 2009, showed no evidence of ovarian cysts. Regarding the uterine fibroids, the examiner stated that it is possible that fibroids can be aggravated by birth control pills due to the presence of estrogen that is contained in the birth control pills. However, this possibility does not rise to the level of reasonable doubt because the Veteran was on Ortho Novum 777 prior to entry into military service and there is no evidence of uterine fibroids during military service. On VA examination in October 2009 the examiner opined that it is less likely than not that the Veteran’s unclassifiable headache complaint for which she did not seek treatment is secondary to service or secondary to her current anemia. The examiner also opined that the Veteran’s headaches were less likely than not secondary to any episodic self-limited encounter she may have had in the military. In a March 2012 opinion, the Veteran’s private physician, Dr. M. stated that the Veteran was initially seen in October 2011 for a second opinion regarding uterine fibroids/infertility. The physician reviewed the Veteran’s treatment records inclusive of dates 1993-1999 and indicated that the Veteran’s complaints of deep dyspareunia, bloating, pelvic pain, and infertility may have been indicative of fibroid manifestations at the time. The Veteran had undergone numerous diagnostic tests and surgical procedures including infertility treatments for symptomatic leiomyoma. The examiner indicated that it was her professional opinion that it is more likely than not that the Veteran’s current condition may have pre-existed since 1993. VA examination findings in May 2016, as well as July 2016 and March 2017 VA medical opinions show that all evidence of record was reviewed, including the medical opinion of March 2012 by Dr. M. The VA examiner found that the Veteran’s uterine fibroids were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the course for uterine fibroids is unknown, and that most women do not become symptomatic until their thirties. The examiner found that an ovarian cyst was diagnosed in 2004. The examiner pointed out that follicle cysts of the ovary are a normal consequence of production. The examiner indicated that radiology reports were reviewed and the first pelvic sonogram, done on September 22, 2003, when the Veteran was 32 years old, showed uterine fibroids. He noted that any prior menstrual abnormalities were dysfunctional uterine bleeding. The VA examiner also noted that the letter from Dr. M. states that the complaints may have been indicative of fibroid manifestations; however, Dr. M. does not make a specific diagnosis of any fibroids between 1993 and 1999. The examiner also noted that dysfunctional uterine bleeding will give the same menstrual history, and pelvic pain, dyspareunia, and bloating, and have other possible causes. Uterine fibroids were not diagnosed during that time, and not confirmed on any exam or imaging. The examiner pointed out that the consult from Dr. M. says only that symptoms may have resulted from fibroids, not that they did result from fibroids. During the May 2016 VA examination, the examiner indicated that all evidence of record was reviewed, including the medical opinion of March 2012 by Dr. M. The VA examiner noted in the July 2016 opinion that iron deficiency anemia, menorrhagia, infertility, and retroverted uterus were diagnosed in 2001. He also pointed out that the Veteran was never diagnosed with any of these disabilities while on active duty. He indicated that any prior menstrual abnormalities were dysfunctional uterine bleeding. The examiner also pointed out that the causes for infertility are multiple, and uterine fibroids were not specifically identified as the cause. The examiner found that the erection everted uterus is a congenital anomaly of no significance, and means the cervix is tilting up. He also concluded that uterine fibroids are not related to any claimed headaches. In an August 2020 VA opinion, the examiner opined that it was less likely than not that the claimed retroverted uterus, uterine fibroids, headaches, infertility, anemia and ovarian cysts were incurred in by the claimed in-service injury, event or illness. The examiner explained that the Veteran had a diagnosis for a retroverted uterus with uterine fibroids noted on ultrasound in March 2001. There is literature that suggests the use of oral contraceptives may cause the enlargement of uterine fibroids uterus, however there is no documentation that oral contraceptives cause the development of uterine fibroids. The examiner stated that multiple risk factors are considered in the development of uterine fibroids including genetics, insulin uptake, race, and unknown factors. The examiner pointed out that the Veteran had no documented diagnosis during active service of uterine fibroids or retroverted uterus and no other objective findings that would be consistent with the diagnosis of uterine fibroids during active service. Thus, the examiner opined that the Veteran’s claimed retroverted uterus and uterine fibroids are less likely as not incurred in or caused by an onset during service or otherwise related to an in-service injury, event, or disease to include long-term oral contraceptive usage during service. As for the headaches, the examiner explained that the Veteran had documentation of generalized headaches that are typically noted upon walking and were relieved with rest and worsened with stress. The examiner found no evidence of any direct link between the Veteran’s headaches to her oral contraceptive use as she still had intermittent complaints of headaches while not on any hormone therapy. Thus, the examiner concluded that the Veteran’s headaches are less likely as not incurred in or caused by onset during service or are otherwise related to an in-service injury, event, or disease to include long-term oral contraceptive uses during service. The examiner stated that the Veteran has a diagnosis and treatment for infertility noted in November 2009 to be secondary to bilateral tubal occlusion and male factor infertility. The examiner explained that while uterine fibroids may play a role, the main source of the Veteran’s infertility was from tubal occlusion and male factor. Thus, the examiner concluded that the Veteran’s infertility was less likely as not incurred in or caused by onset during service or otherwise related to an in-service injury, event, or disease to include long-term oral contraceptive uses during service. The examiner stated that the Veteran had a diagnosis and treatment for iron deficiency anemia in 2008 requiring treatment. The examiner found no documentation of any correlation between oral contraceptive usage and the development of anemia and there was no evidence of anemia during active service. Thus, the examiner concluded that the Veteran’s anemia was less likely as not incurred in or caused by onset during service or otherwise related to an in-service injury, event, or disease to include long-term oral contraceptive uses during service. The examiner noted that the Veteran had a diagnosis of ovarian cysts during her myomectomy in January 2004 and pointed out that the Veteran has not had a recurrence of the ovarian cyst since that time. Thus, the examiner opined that the Veteran’s claimed ovarian cysts were less likely as not incurred in or caused by onset during service or are otherwise related to an in-service injury, event, or disease to include long-term oral contraceptive uses during service. The examiner also opined that the headaches, infertility, and ovarian cysts are less likely as not proximately due to or the result of the Veteran’s uterine fibroids. The examiner opined that the Veteran’s ovarian cysts were less likely as not caused or aggravated by the uterine fibroids as there was no relationship between ovarian cysts and uterine fibroids and no causative etiology or aggravating factors. The examiner opined that uterine fibroids do not influence infertility and the Veteran’s infertility was less likely as not aggravated beyond its natural progression by the uterine fibroids. As for headaches, the examiner opined that they are a separate and distinct condition and uterine fibroids would have no aggravating effects on headaches and thus the Veteran’s headaches are less likely as not aggravated beyond natural progression by the uterine fibroids. Although the August 2020 examiner opined that the retroverted uterus and anemia were proximately due to or aggravated beyond natural progression by the uterine fibroids, service connection for uterine fibroids as discussed herein is not being granted. Thus, the matter of whether the ovarian cysts, anemia, headaches, infertility, and retroverted uterus are secondary to the uterine fibroids need not be further discussed. The Board finds the August 2020 VA opinions to be probative as they were based on medical principles and applied to the facts of the case. Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). The examiner considered the nature of the Veteran’s headaches, anemia, and gynecological disorders in proffering the opinions. The opinions are uncontroverted by the other competent and probative evidence of record. The Board recognizes that there are two favorable opinions in the file. As discussed above, in a March 2012 opinion, the Veteran’s private physician, Dr. M. reviewed the Veteran’s service treatment records and indicated that the Veteran’s complaints of dyspareunia, bloating, pelvic pain, and infertility may have been indicative of fibroid manifestations at the time. In a January 2020 private opinion, the examiner noted that the Veteran was diagnosed with uterine fibroids in 2001. The Veteran from 1993 to 1999 was taking oral contraceptive pills. While on these, she on occasion complained of dysmenorrhea and dyspareunia, the latter of which was documented in September 1995, and the etiology of these two symptoms was linked to the growth of uterine fibroids. The Veteran from 2001 to 2012 was treated for fibroids in an effort to improve her symptoms and ability to conceive. Due to the severity of the fibroids, adenomyosis, endometriosis, and pelvic adhesions she was unable to do so and eventual met the criteria for primary infertility. The examiner reviewed the Veteran’s service records and opined that it is at least as likely as not that the Veteran’s symptoms of dysmenorrhea, dyspareunia, and chronic pelvic pain are linked to the occult development of uterine fibroids. The examiner stated that although oral contraceptives are considered to be a first line treatment option for pelvic pain, endometriosis, and adenomyosis, the science also supports that they can have an enhancing effect on the growth of uterine fibroids overtime. Thus, the examiner opined that it is at least as likely as not that the Veteran’s fibroids and endometriosis were developing without detection during service and were aggravated by her use of oral contraceptive pills and therefore were a common link to her subsequent gynecological maladies. The Board rejects the favorable opinion in March 2012 as it was couched in terms of possibility rather than probability. The January 2020 VA opinion also was couched in terms of possibility as it was based on the rationale that pelvic pain, endometriosis, and adenomyosis can have an enhancing effect on the growth of uterine fibroids over time. An opinion expressed in the term of “could” or “can,” the equivalent of “may,” also implies that it “could not” or “can not” be possible and it is too speculative to establish service connection for the Veteran’s claimed gynecological disorders. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (The term “may” also implies that it “may not” and it is too speculative to establish a nexus.); Obert v. Brown, 5 Vet. App. 30 (1993) (the Board in expressing doubt as to the sufficiency of a medical opinion is required to further develop the case and seek further medical evidence that would either support or repudiate evidence from other physicians.). To the extent that the January 2020 private examiner opined that the Veteran’s dysmenorrhea and dyspareunia, the latter of which was reflected in the September 1995 service treatment record, was linked to the growth of uterine fibroids, the examiner provided no rationale for this conclusion. A mere conclusion statement is insufficient to allow the Board to make an informed decision as to the weight to assign to the medical statement. Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). Conversely, in a September 2020 addendum opinion, the VA examiner acknowledged that the Veteran submitted a private medical opinion in January 2020 from Dr. M. regarding her uterine fibroids. The VA examiner explained that while it is true that dysmenorrhea, dyspareunia and pelvic pain are found to be symptoms of uterine fibroids, these symptoms can also be present in the absence of uterine fibroids. The VA examiner pointed out that the Veteran’s enlistment physical in October 1992 shows regular menses with mild pain. The examiner further found it significant that complaints of painful intercourse noted in September 1995 were noted with complaints of vaginal itching and burning associated with vulvovaginal candidiasis. The VA examiner explained that there is no objective evidence available that substantiates the private doctor’s opinion that the Veteran’s complaints of mild intermittent dyspareunia, dysmenorrhea and pelvic pain are due to early findings of uterine findings. As to the private medical opinion’s determination that the uterine fibroids, adenomyosis and endometriosis are the cause of the Veteran’s infertility, the VA examiner explained that a thorough review of the Veteran’s treatment records reveal that her infertility is due to bilateral tubal occlusion and male factor infertility, neither of which are due to uterine fibroids, adenomyosis and endometriosis. Thus, considering the relative merits of the analytical findings and the details of the opinions, the Board places more weight on the unfavorable VA August 2020 and September 2020 VA opinions than on the favorable March 2012 and January 2020 private opinions. As a lay person, the Veteran is competent to report symptoms pertaining to her gynecological disorders, anemia, and headaches. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the etiology of the Veteran’s uterine fibroids, ovarian cysts, anemia, headaches, infertility, and retroverted uterus fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). These disorders are not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating such disorders. Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. As the lay evidence is not competent, the matter of whether it is credible is not reached. Accordingly, because the preponderance of the evidence is against the claims of service connection for uterine fibroids, ovarian cysts, anemia, headaches, infertility, and retroverted uterus, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.   REASONS FOR REMAND Issue 7: Entitlement to service connection for menorrhagia, including as due to birth control pills and uterine fibroids. In the April 2020 remand, the Board instructed that a VA opinion be obtained as to whether the Veteran’s menorrhagia at least as likely as not had its onset during service or is otherwise related to an in-service injury, event, or disease, to include long term oral contraceptive usage (Ortho Novum 777). However, the VA examiner in subsequent opinions dated in August 2020 and September 2020 did not address whether menorrhagia is related to service on a direct basis. Therefore, there is a lack of compliance with the Board’s remand directives. Compliance with the Board’s remand instructions is neither optional nor discretionary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is REMANDED for the following action: The claims file should be sent to the August 2020 VA examiner. If this examiner is unavailable another appropriate examiner is asked to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s menorrhagia had its onset during service or is otherwise related to an in-service injury, event, or disease, to include long term oral contraceptive usage (Ortho Novum 777). In offering the opinion, the examiner is asked to consider the January 2020 private opinion.   For all opinions rendered, the examiner should explain the rationale. If the examiner is unable to provide an opinion, he or she should explain why. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mac, 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.