Citation Nr: 22012282 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 16-48 926 DATE: March 3, 2022 ORDER Entitlement to service connection for residuals of a left ovarian cyst, status post left salping oophorectomy (previously characterized as vaginal cysts) is denied. Entitlement to service connection for residuals of a right breast lumpectomy (claimed as a breast condition) is denied. REMANDED Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran's left ovarian cyst began during active service or is otherwise related to an in-service injury or disease. 2. The evidence of record persuasively weighs against finding that the Veteran's right breast tumor, fibroadenoma, began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a left ovarian cyst are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for residuals of a right breast lumpectomy are not 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 in the United States Army from March 1986 to May 1987 and the United States Air Force from July 1995 to May 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at an April 2019 Board hearing before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The Board previously recharacterized the claims for service connection for residuals of removal left ovary and right breast lumpectomy to reflect the Veteran's contentions more adequately as recorded in the hearing transcript. In September 2019, the Board remanded the Veteran's claim for entitlement to service connection for a back disorder and denied service connection for residuals of a left ovarian cyst and right breast lumpectomy. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the matter to the Board. In March 2021, the Board remanded the service connection claims for residuals of a left ovarian cyst and right breast lumpectomy to obtain new VA medical opinions in compliance with the JMPR instructions as well as remanded the claim for service connection for a back disorder for compliance with the Board's prior remand directives. The record now contains VA medical opinions dated in November 2021 regarding the Veteran's residuals of a left ovarian cyst and right breast lumpectomy claims, which are adequate for adjudication purposes. The Board is now satisfied there was substantial compliance with its remand directives regarding these claims. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The claim for service connection for a back disorder is addressed in the remand portion below. Service Connection 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). 1. Entitlement to service connection for residuals of a left ovarian cyst, status post left salping oophorectomy (previously characterized as vaginal cysts) The Veteran contends that her current residuals of left ovarian cysts is a continuation of cysts discovered and treated in service. See Hearing Transcript (August 2019). Post-service, in 2005, she underwent a hysterectomy with left ovary removal (salping oophorectomy). As a preliminary matter, the Board notes that malignant tumors are a chronic disease subject to presumptive service connection under the provisions of 38 C.F.R. § 3.309. Although cysts were present in service, the evidence contains neither contentions nor findings for malignant tumors. Therefore, the chronic disease provisions are not for application in the current case and were not considered in the adjudication of this issue. 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, while the Veteran has residual symptoms due to the removal of her left ovary, and evidence shows that she had multiple cysts in the right ovary in service, the evidence of record persuasively weighs against finding that the Veteran's left ovary disability began during service or is otherwise related to an in-service injury, event, or disease. See 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. Service treatment records (STR) show the Veteran was diagnosed with right ovarian cysts in in December 1995 and a probable small follicular/sebaceous cyst on the right labia in May 1996. STRs show no treatment for or diagnosis of left ovarian cysts or tumors. Further, STRs reflect no findings for abnormal left ovary pathology. No separation examination is of record. The Veteran was separated from service due to pregnancy in May 1997 and continued to receive treatment from military service medical providers. See Hearing Transcript; see also STR-Medical (May 1997). A multi cystic right ovary was noted in August 1998; reduction in size was noted in April 1999. Imaging of the left ovary in August 1998 showed it to be within normal limits, and no cysts were noted. See STR-Medical (May 1997). The first medical evidence of left ovarian cyst comes from private treatment records in May 2005, which comes years after her separation from service. These private treatment records show the Veteran was diagnosed with left ovarian cysts after presenting with history of "pelvic pain," "left ovarian mass," and "menometrorrhagia." See Medical Treatment Record - Non-Government Facility (October 2016). Furthermore, a November 2021 VA medical opinion (VAMO) reflects that the Veteran's residuals of left ovarian cysts were less likely than not incurred during service or related to in-service injury, event, or disease, including ovarian cyst. The opinion noted that the medical records showed that, in 2005, the Veteran underwent a total abdominal hysterectomy and left salpingo-oophorectomy for pelvic pain, left ovarian mass, and menometrorrhagia. The histopathology showed that the left ovarian mass was a serous cystadenoma that was likely the cause of the pelvic pain and the uterus showed presence of leiomyomata which was likely the cause of the abnormal bleeding as well as the pelvic pain. The examiner noted that while the Veteran had sought consultations for various genitourinary conditions (including, cystitis, yeast infections, abnormal Pap smear, and cyst on right labia majora) while on active duty, there was no indication of a left ovary condition during service. The opinion further noted that none of the reasons for the in-service genitourinary concerns led to the development of a left ovarian serous cystadenoma. The opinion explained that the development of a cystadenoma arises from the epithelium, the outer lining of the ovary, which is anatomically far away from the cervix, the right labia majora, and the urinary bladder. Based on consideration of the medical evidence of record, the examiner opined that it is less likely than not that the Veteran's diagnosed residuals of a left ovarian cyst, status post left salping oophorectomy was incurred in or caused by residuals of ovarian cysts during service. The competent, credible evidence of record does not show that the Veteran had left ovarian cyst in service or that the post service development of left ovarian cysts is etiologically related to service. The Board fully accepts that Veteran earnestly believes her residuals of left ovarian cyst are related to her in-service symptoms. While the Veteran is competent to report having experienced symptoms of menorrhagia and pelvic pain intermittently since service, she is not competent to either diagnosis retrospectively herself with having had left ovarian cyst in service or to opinion that post service findings for left ovarian cyst is etiologically related to service, to include any gynecological symptoms or findings in service. The etiology is medically complex, as it requires medical knowledge of the female reproductive system to include symptoms and causes of ovarian cysts. Neither diagnosis nor etiology is susceptible to lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Additionally, her belief that left ovarian cysts began in service appears to be based on information inconsistent with STRs which show only right ovarian cysts in service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Therefore, the Veteran's opinion has no probative value. She has not presented a favorable medical opinion to weigh in this matter. The Board acknowledges that the Veteran is a trained nurse; however, she does not contend (nor does the evidence show) that she has the medical training or knowledge to competently evaluate the etiology of any female reproductive disorder, to include her cyst-related symptoms or diagnoses. See Hearing Transcript (April 2019). Consequently, the Board assigns greater probative value to the normal STRs coupled with the many years intervening service and the first documented findings for left ovarian cysts. Further, the Board assigns greater probative value to the November 2021 VA medical opinion because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez, 22 Vet. App. at 304. On balance, the evidence of record persuasively weighs against the claim. Accordingly, the claim is denied. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 2. Entitlement to service connection for residuals of a right breast lumpectomy (claimed as a breast condition). The Veteran contends that breast discharge in service was an early manifestation of a later diagnosed, nonmalignant lump. See Hearing Transcript. She does not contend that breast discharge has continued since service. 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, while the Veteran has residuals of a right breast lumpectomy, and evidence shows that bloody discharge from the nipples occurred during the Veteran's last pregnancy prior to separation from service, the evidence of record persuasively weighs against finding that the Veteran's diagnosis of upper outer quadrant (UOQ) fibroadenoma, status post right breast lumpectomy, began during service or is otherwise related to an in-service injury, event, or disease. It is noted that fibroadenoma is a benign breast tumor, typically painless, and the most common noncancerous breast lump in young women. See https://www.mayoclinic.org/diseases-conditions/fibroadenoma/symptoms-causes/syc-20352752 (last accessed February 23, 2022). As such, the chronic disease provisions of 38 C.F.R. § 3.309 are not applicable and not addressed further herein. STRs show the Veteran had bloody discharge from the bilateral breasts beginning in March 1997 at 23 weeks pregnant. The Veteran had dense fibroglandular tissue, but no discrete masses or thickening, adenopathy, or skin or nipple lesions were noted on examination. On follow-up, the Veteran was diagnosed with probable physiological ductal ectasia. See STR (May 1997). Post-separation obstetrics and gynecology records showed the Veteran's bilateral breasts to be symmetrical without masses, discharge, or retraction on delivery. See STR (May 1997). The Veteran testified that she was informed by military medical personnel that she had abnormal breast tissue and would have to be followed due to a family history of breast cancer. See Hearing Testimony. Private treatment records note a family history of breast cancer (maternal aunt) beginning May 2005. A June 2013 mammography screening shows that the Veteran has a history of palpable lump in the right breast. A July 2013 mammogram and ultrasound showed interval development of two lesions in the right breast when compared to mammograms from May 2011 and June 2012. See Medical Treatment Record (October 2016). A biopsy later that month showed the Veteran had fragments of fibroadenoma in the right breast. The lesions were removed in February 2014, and no evidence of malignancy is noted in the record. Private treatment records show the Veteran was not diagnosed with fibroadenoma in the right breast until June 2013, over a decade after her separation from service. Further, a November 2021 VAMO concludes that the Veteran's fibroadenoma, status post right breast lumpectomy, is less likely than not incurred in or caused by in-service injury, event, or illness. The rational was that the medical evidence reflected that the Veteran developed a fibroadenoma on her right breast, which was first identified in 2013, and had not been present on her 2011 and 2012 mammograms. The opinion acknowledged that the Veteran had experienced bloody nipple discharge while on active duty during her pregnant. However, the opinion explained that it was widely accepted that pregnancy causes a lot of hormonal changes and fibrocystic changes in the breast which can cause a bloody discharge, and which is consistent with the designation of "probable physiologic" given during her consultation for the symptom. Moreover, her prenatal consultations were negative for persistent bloody nipple discharge which indicated the resolution of the symptoms and supports the rational that the bloody discharge was from physiologic causes. Based on consideration of the Veteran's clinical history and medical findings, the opined concluded that that it is less likely than not that the Veteran's residual of right breast lumpectomy was incurred in or caused by the breast condition during service. While the Veteran is competent to report her symptoms, such as daily breast pain since service, she is not competent to provide a diagnosis in this case or to link breast nipple discharge shown in service to the development of a lump in her breast almost two decades later. The issue is medically complex, as it requires knowledge of the mechanisms of the breast, the types of breast tissue, and the processes related to development of lumps or tumors in the breast. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board acknowledges that the Veteran is a trained nurse; however, she does not contend (nor does the evidence show) that she has the medical training or knowledge to competently evaluate the etiology of her breast symptoms or diagnoses. See Hearing Transcript (April 2019). While the Veteran believes her right breast fibroadenoma is related to an in-service breast symptoms of nipple discharge and pain during her pregnancy prior to service separation, she is not competent to provide a nexus opinion regarding this issue. Again, the issue is medically complex, as discussed above. The etiology of her fibroadenoma first shown many years after service is not susceptible to lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Therefore, the Veteran's opinion has no probative value. She has not presented a favorable medical opinion to weigh in this matter. Consequently, the Board gives more probative weight to the normal STRs coupled with the many years intervening service and the first documented findings for right breast fibroadenoma. Probative weight is also assigned to the Veteran's reports that she had experienced no nipple discharge since service. Further, the Board assigns greater probative value to the November 2021 VAMO because it is based on an accurate medical history and the Veteran's lay statements, and it provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Lastly, the Board has considered the Veteran's report of daily breast pain since service. See Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018), ("pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity."). However, in this case, neither the lay nor the medical evidence shows any functional loss or impairment in earning capacity due to his reported symptoms of breast pain. Saunders, 886 F.3d 1356, 1363 (Fed. Cir. 2018). On balance, the evidence of record persuasively weighs against the claim. Accordingly, the claim is denied. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). REASONS FOR REMAND In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. Indeed, the Board expressly defers a credibility determination in this appeal until the development has been completed to the extent feasible. Entitlement to service connection for a back disorder is remanded. The Veteran contends that her current back disability is caused by a motor vehicle accident (MVA) in service. She argues, and reports she was told by a doctor, that her condition is the progression of her in-service back injury. She reports continuous back pain from the 1996 MVA to the present. See Hearing Transcript (August 2019). The Board previously noted that the Veteran is a nurse and competent to diagnose lumbar strain, which is generally accepted as not a complex diagnosis. See BVA Decision (September 2019) and (March 2021). The March 2013 and March 2020 VA medical opinions (VAMO) were previously considered inadequate, and the Board finds that a remand is again necessary as a November 2021 VAMO is inadequate and fails to comply with the previous remand instructions. 38 C.F.R. § 3.159 (c); Stegall v. West, 11 Vet. App. 268 (1998). Foremost, the November 2021 VAMO does not account for the Veteran's reports of back pain since service, despite the Board's previous instructions to do so as well as the Board's notation that the Veteran's is a nurse and therefore competent to diagnose lumbar strain. See Stegall, supra. While the VAMO acknowledged the Veteran's "contention that her current back pain originated" from the 1996 MVA, the examiner failed to address her reported history of worsening back pain since that in-service injury. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate"). Generally, a claimant is competent to attest to observable symptomatology and, if rejected or found unpersuasive in view of other facts, this must be explained. The opinion does not reflect adequate consideration of the Veteran's reports worsening back condition over time since the 1996 MVA. See C&P Exam (March 2020). Further, the VAMO is inadequate because it reflects no consideration of the Veteran's diagnosed IVDS, which is akin to arthritis, which is a "chronic disease" listed under 38 C.F.R. § 3.309 (a). The Board previously instructed the examiner to consider the medical inquiries applicable to any arthritis of the spine as a chronic disease. See 38 C.F.R. §§ 3.303, 3.307, 3.309; see also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Pertinently, the applicable regulation requires continuity of symptomatology, not continuity of treatment. Wilson v. Derwinski, 2 Vet. App. 16 (1991). Here, the record reflects that the Veteran has reported continuity of back symptomatology since service. The clinician is not required to accept the Veteran's history of continuity of symptoms or her theory that her military service caused her current back disorder if this is incongruous with the record; however, the clinician is required to fully explain why he or she disagrees with the Veteran's theory of causation, and provide a discussion of the relevant or significant medical history, clinical findings, medical knowledge or literature, etc., that support the negative medical opinion or conclusion(s). If another etiology is the more likely cause, the clinician must provide a complete explanation of his or her reasoning. Given that the November 2021 VAMO failed to adequately answer the questions previously posed by the Board regarding the etiology of the Veteran's current back disorder, a remand is necessary. See Stegall, supra; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of any back disability. The medical opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). The examiner must address the following: (a.) Whether the Veteran's back disability is at least as likely as not related to an in-service injury, event, or disease, including a 1996 MVA. Consider (1) the two January 1997 assessments of low back strain, mechanical back pain, and minimum lumbar tenderness as well as lay statements of worsening back pain since 1996 MVA; (2) medical records that reflect the Veteran's 2002 injury at work. A complete medical history should be obtained; if any medical history is rejected, the examiner must fully explain why. A complete rationale is required. (b.) With respect to the Veteran's IVDS, whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints or findings for back disability. If another etiology is the more likely cause, the clinician must provide a complete explanation of his or her reasoning. NOTE (2): The clinician is required to fully explain why he or she disagrees with the Veteran's theory of causation or rejects any history provided. 2. Ensure that the VA medical opinions obtained includes a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.M., 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.