Citation Nr: 21015017 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 17-46 148 DATE: March 16, 2021 ORDER The previously denied claim for service connection for a hysterectomy with removal of both ovaries as the result of a fused intrauterine device (IUD) is reopened. The claim for service connection for a hysterectomy with removal of both ovaries as the result of a fused IUD is granted. FINDINGS OF FACT 1. In an unappealed November 2015 rating decision the Regional Office (RO) denied service connection for a hysterectomy as the result of a fused IUD on the basis that there was no medical evidence of a fused IUD, or any other evidence that causally linked the post-service hysterectomy to active service. 2. The evidence received since November 2015 is neither cumulative nor redundant of evidence previously considered and raises a reasonable possibility of substantiating the claim. 3. The complete hysterectomy with removal of both ovaries is related to the onset of symptoms in service, as well as the failed (incomplete) removal of an IUD during active service. CONCLUSIONS OF LAW 1. The RO’s November 2015 rating decision denying service connection for a hysterectomy as the result of a fused IUD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1103 2. Evidence submitted since November 2015 with regard to service connection for a hysterectomy as the result of a fused IUD is new and material; the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156. 3. The criteria for service connection for complete hysterectomy with removal of both ovaries are met. 38 U.S.C. § 1131, 5107; 38 C.F.R. § 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force on active from November 1982 to October 1986. This matter comes before the Board of Veterans Appeal (Board) from a March 2017 by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In March 2021, the Veteran testified before the undersigned Veterans Law Judge in by video teleconference. The appeal is being granted prior to association of the transcript with the file, but in light of the favorable outcome, the Veteran is not prejudiced. The transcript of the hearing will be associated with the file at a later date. Reopening VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). “New evidence” is existing evidence not previously submitted; “material evidence” is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The November 2015 rating decision denied service connection on the grounds that there was no medical evidence of a fused IUD, or any other evidence that causally linked the post-service hysterectomy to active service. The Veteran did not appeal or submit relevant evidence within a year, and the November 2015 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Since November 2015 the Veteran testified under oath before the Board as to the pain and symptoms she experienced during active service which led her to seek treatment. Ultimately, she was found to have pelvic inflammatory disease and to need replacement of her IUD. The procedure usually done to replace the IUD failed, and she required additional surgery. The IUD was eventually removed, but her symptoms continued throughout active service and after discharge. She sought treatment after discharge, and ultimately underwent a complete hysterectomy with removal of both ovaries in 1989. In the process of treatment post-service, a piece of the IUD was found in her uterine wall. This testimony is both new and material. The Veteran’s sworn descriptions of her symptoms before and after the attempts during active service to remove her IUD and continuing throughout the remainder of her service and post-service until her complete hysterectomy in 1989 were not previously of record. Moreover, they are material to her claim. Accordingly, the claim is reopened. Service Connection Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a per-existing injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C. § 1131, 5107; 38 C.F.R. § 3.102, 3.303. “To establish a right to compensation for a present disability, a veteran must show: ‘(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’—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The nexus element may also be fulfilled by (1) a nexus opinion or (2) competent and credible evidence showing that the veteran has experienced frequent and persistent symptoms of the disease since service. 38 U.S.C. § 1154 (a); 38 C.F.R. §§ 3.303 (a),(d); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303 (d). 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 his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). “[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine on a case by case basis, whether the Veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). The Veteran contends that she developed gynecological problems in service, and it was recommended that she have her IUD removed. Such was allegedly performed in April 1983, but she continued to have difficulties, describing pain, irregular menses, and heavy bleeding. After service, it was discovered that a fragment of the IUD had been retained and was buried in her uterine wall. Though it was removed, problems continued and she eventually required a total hysterectomy with removal of her ovaries. She attributes this progression to the failed removal of the IUD. There is no dispute that the Veteran was treated while on active service for gynecological conditions. Service treatment records (STRs) show numerous entries concerning her reports of pain and discomfort and treatment for pelvic inflammatory disease, ovarian cysts, irregular cycle and infection including with prescribed medication and surgery. In April 1983, it was recommended that her “outdated” IUD, which was implanted prior to entry into service, be removed. The initial attempt was unsuccessful; subsequent notes, however, state the removal was successful. STRs document that the Veteran continued to manifest pelvic pain, amenorrhea, infection, and irregular cycle after corrective surgeries until her discharge. The Veteran testified competently and credibly that her gynecological symptoms, which started during active service, and increased with the unsuccessful attempt to remove her IUD, continued post-service to the 1989 complete hysterectomy. There is no dispute that the Veteran has undergone a complete hysterectomy with the removal of both ovaries. Private hospital operative reports show she underwent a total hysterectomy in August 1989. VA treatment records continue to show she is status post total hysterectomy. The remaining issue before the Board is whether there is a causal nexus connecting the Veteran’s complete hysterectomy with removal of both ovaries to her in-service gynecological symptoms, including the surgeries to remove the IUD. Post service private records corroborate the reports of continued gynecological problems. In April 1989, during an elective tubal ligation, the surgeon discovered a piece of retained IUD in the uterine cavity wall. It took repeated attempts to remove it. The normal tool for such, a basic hook, failed and showed the IUD “remained deeply imbedded.” Thereafter, a form of forceps, a Hulka tenaculum, was used to grasp the piece and pull it out successfully. In August 1989, after a period of continued problems diagnosed as “chronic pelvic pain secondary to retained” IUD, multiple uterine leiomyomata, and chronic endometriosis, a total hysterectomy with removal of both ovaries. The RO has denied service connection based on findings that there was no retained piece of an IUD to cause the problems, and that even if the IUD was responsible, its removal was an elective procedure, as was the subsequent hysterectomy. Elective procedures are not service connectable, as they do not by definition involve a disease or injury; the subject had to give consent for the procedure. 38 C.F.R. § 3.4(b). However, unanticipated or unintended complications of elective surgery may be service-connected, as consent was not given for such, and the surgery which caused them can be considered a disease or injury. After review of the evidence, the Board finds the Veteran’s March 2021 testimony credibly and overwhelmingly supported by the service treatment records and post-service hospital records. Her competent and credible reports of gynecological distress starting during active service, continuing after the surgeries to remove the IUD and the ovarian cyst, and then continuing after discharge to the April and August 1989 surgeries, is an indicator of chronicity. Moreover, her testimony is corroborated by the surgeon’s finding of a retained IUD fragment in April 1989. Her testimony is further corroborated by suspected findings of endometriosis during active service and confirmation by pathological findings of endometriosis after the August 1989 hysterectomy 1989. Therefore, the Board finds that the probative lay and medical evidence of record shows that each element required for service connection has been met as the Veteran has a current diagnosis of a hysterectomy with removal of both ovaries that had its onset during active service when the Veteran underwent unsuccessful removal of an IUD, and the symptoms of which have been present since then to the 1989 hysterectomy. The retained piece of the IUD unsuccessfully removed during active service was found during the April 1989 surgery, prior to the August 1989 hysterectomy, and the surgeon directly attributed the Veteran’s gynecological problems, including the need for hysterectomy, to the retained fragment. In addition, the endometriosis suspected during active service was confirmed by pathological findings in August 1989. 38 C.F.R. §§ 3.303 (a),(d); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Even if the failed IUD extraction was not the cause of the Veteran’s gynecological problems, the evidence of record shows that the conditions which were identified as causing the need for surgery had their onset in service. Accordingly, service connection for the hysterectomy with removal of both ovaries is warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bakke, Lila J. 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.