Citation Nr: 21029185 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-13 948 DATE: May 12, 2021 ORDER Service connection for the residuals of a hemorrhagic cyst removal is denied. REMANDED Service connection for a clotting disorder, to include a pulmonary embolism, is remanded. Whether the character of the Veteran's second period of active service is a bar to VA compensation benefits is remanded. FINDING OF FACT During the appeal period, a current disability related to the removal of a hemorrhagic cyst is not established. CONCLUSION OF LAW The criteria for service connection for the residuals of a hemorrhagic cyst removal have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1996 to February 2002. The Veteran received the Army Good Conduct Medal for the period of service from September 25, 1996, to September 24, 1999. Although there is no DD Form 214 in the file, VA had determined the Veteran's period of service from September 25, 1996, to September 24, 1999, is honorable. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 administrative decision and a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The February 2013 administrative decision deemed the period from September 25, 1999, to February 5, 2002, as dishonorable for VA purposes. The Veteran originally filed her claim as a claim of service connection for a pulmonary embolism. In a January 2013 statement incidental to her submission of a medical authorization, the Veteran asserted she has a blood clotting disorder, and will need to take coumadin for the rest of her life. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Id. at 5. Thus, in light of the Court's decision in Clemons, the Board has re-characterized the issue on appeal as entitlement to service connection for a clotting disorder to include a pulmonary embolism. Neither the Veteran nor her representative have raised any 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). 1. Service connection for the residuals of a hemorrhagic cyst removal. The Veteran seeks service connection for the residuals of a hemorrhagic cyst which was removed during service. In her February 2021 Board hearing, the Veteran asserted that she still has a cyst on her ovary. She asserts that the surgical procedure in service removed the cyst and not the ovary and these cysts come back. She testified that she has severe pain when she is ovulating, and she fears that the cyst might rupture. The Board notes that the hemorrhagic ovarian cyst that occurred in service occurred during the period of service that is the subject of appeal over the character of service. The Board need not remand the current issue as an intertwined issue because, even if the period of service were not a bar to VA benefits, service connection would not be warranted for the reasons stated below. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a hemorrhagic cyst or its residuals and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service treatment records show that a hemorrhagic cyst of the left ovary was diagnosed and removed in January 2001 after the Veteran presented to the emergency room. After service, treatment records show the Veteran had no complaints in gynecological examination visits in August 2010, September 2011, August 2012, August 2012, August 2013, and September 2014 treatment visits. The examinations were normal each visit, except that the September 2011 record reports no results other than a normal PAP smear. The August 2013 and September 2014 records affirmatively report that no masses were present. In the February 2021 Board hearing, the Veteran asserted that she still has a cyst on her ovary. She reported that the surgical procedure in service removed the cyst and not the ovary and these cysts come back. She testified that she has severe pain when she is ovulating, and she fears that the cyst might rupture. The Board finds that the post service treatment records showing no gynecological complaints and normal pelvic examinations are more credible and probative than the Veteran's statements that she still has a cyst on her ovary and that she has severe pain when ovulating. Her statements as to the presence of symptoms are inconsistent with the treatment records. The Board finds the statements made during medical treatment to be more reliable. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes). As such, the Board finds the Veteran does not have symptoms related to the in-service cyst or its residuals. Therefore, a disability is not present even when contemplating symptoms only. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). While the Veteran is competent to report pain during ovulation, she is not competent to identify the cause of that ovulation as being due to an ovarian cyst. Furthermore, she is not competent to report that "these cysts grow back" and that her in-service cyst grew back. Finally, she is not competent to provide a link between the in-service cyst and its removal and her current symptoms. The presence of an ovarian cyst requires examination of an internal organ and the question of causation of pelvic pain involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran has not been shown to have the requisite experience, skill, or knowledge to make such determinations. Consequently, the Board gives no probative weight to the lay statements. REASONS FOR REMAND 1. Service connection for a clotting disorder, to include a pulmonary embolism, is remanded. The Board cannot make a fully-informed decision on the issue of whether a clotting disorder is related to the Veteran's honorable period of service, including the Cesarian section birth in September 1999. Shortly after this birth, but in the Veteran's dishonorable period of service, she developed a pulmonary embolism, and has been on blood thinners since service. 2. Whether the character of the Veteran's second period of active service is a bar to VA compensation benefits is remanded. Remand is warranted to obtain a medical opinion as to whether the Veteran was insane by VA's definition at the time of the misconduct that led to her discharge. The Veteran has two periods of service, one honorable and one deemed dishonorable. As reflected in the February 2013 VA administrative decision, the period from September 25, 1996, to September 24, 1999, is honorable service. The period from September 25, 1999, to February 5, 2002, was shown as dishonorable on an October 2004 official statement of service from the Department of the Army. The official statement indicated that the Veteran was discharged for "Court-Martial-Desertion." No specifics have been provided. The Board notes that a DD Form 214 was not issued in this case. The Veteran's misconduct was a February 2000 incident of serious bodily injury to her 5-month-old daughter for which she was convicted of a crime and sentenced to 20 years in prison. She asserts that she was experiencing post-partum depression at the time. She was jailed awaiting charges from February 2000 to March 2000, and then incarcerated after conviction in July 2001. A dishonorable discharge, a statutory bar, or a regulatory bar deprives the claimant of all gratuitous VA benefits, unless the Veteran was insane at the time of the conduct leading to the discharge. 38 C.F.R. § 3.12. Specifically, pursuant to 38 U.S.C. § 5303(b), "if it is established to the satisfaction of the Secretary that, at the time of the commission of an offense leading to a person's court-martial, discharge or resignation, that person was insane, such person shall not be precluded from benefits under laws administered by the Secretary based upon the period of service from which such person was separated." 38 U.S.C. § 5303(b). An insane person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides. 38 C.F.R. § 3.354(a). When a rating agency is concerned with determining whether a veteran was insane at the time he committed an offense leading to his court-martial, discharge or resignation, it will base its decision on all the evidence procurable relating to the period involved, and apply the definition in 38 C.F.R. § 3.354(a). 38 C.F.R. § 3.354(b). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for her clotting disorder. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the clotting disorder at least as likely as not related to service, including the September 18, 1999, Cesarean section delivery of her daughter? The Board directs the examiner's attention to the fact that the Veteran's period of honorable service ended September 25, 1999, after which she was diagnosed with a post-partum pulmonary embolism on October 7, 1999. October 7, 1999 is during the Veteran's dishonorable period of service, and therefore, may not be considered as a basis for service connection. Provide a rationale to support the opinion(s). 2. Afford the Veteran a VA examination and obtain a medical opinion by an appropriate clinician, as to whether the Veteran was insane as defined by VA regulations at the time of the misconduct that led to her discharge. After examination of the Veteran and review of the claims file, the examiner should respond to the following: (a) Did the Veteran, due to disease, exhibit a more or less prolonged deviation from her normal method of behavior concurrent with her period of misconduct during service (February 2000, to March 2000 and July 2001 to February 2002)? The misconduct was an incident of bodily harm to her 5-month-old daughter for which she was convicted of a crime and sentenced to 20 years in prison. She asserts that she was experiencing post-partum depression at the time. (b) Did the Veteran, due to disease, interfere with the peace of society concurrent with her periods of misconduct during service (February 2000, to March 2000 and July 2001 to February 2002)? (c) Did the Veteran, due to disease, depart (became antisocial) from the accepted standards of the community to which by birth and education he belonged as to lack the adaptability to make further adjustment to the social customs of the community in which she resided concurrent with her periods of misconduct during service (February 2000, to March 2000 and July 2001 to February 2002)? (Continued on the next page) VA Definition of Insanity: In providing an answer to these questions, the examiner is advised that (for the purposes of this matter) an insane person is one who, due to disease, exhibits a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides. An individual exhibiting such behavior solely as a result of antisocial personality disorder is not considered to be insane. A detailed rationale is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Rocktashel, 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.