Citation Nr: 22016540 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-32 102 DATE: March 22, 2022 ORDER Service connection for a gynecological disorder, to include metrorrhagia, is denied. REMANDED Service connection for a heart disorder is remanded. FINDING OF FACT Shortly prior to and during the relevant period on appeal, the Veteran did not and has not had a current diagnosis of metrorrhagia, infertility, or any other gynecological disorder. CONCLUSION OF LAW The criteria for service connection for a gynecological disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from May 1974 to June 1978. This matter came before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The instant matter was previously before the Board in January 2019, where the issues on appeal were remanded to obtain VA examinations. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As to the issue of service connection for a gynecological disorder, the Board finds that the Veteran received an adequate VA reproductive examination in December 2019. In the January 2019 remand directives, the Board directed that the Veteran be resent a December 17, 2018 Board letter that had arrived blank. While it is unclear from the record whether the Veteran received a copy of that exact letter, the information found in the December 2018 letter would have been included in Board letters sent to the Veteran in July 2020. As such, the Board finds there has been substantial compliance with the January 2019 remand directives, and the issue of service connection for a gynecological disorder is ripe for adjudication. For the reasons discussed below, the issue of service connection for a heart disorder must once again be remanded for additional development. As such, no further discussion of remand compliance is necessary as to that issue. During the course of this appeal the Veteran has advanced having a pre-service heart disorder, and in the January 2019 Remand the Board remanded the heart disorder issue for a 38 U.S.C. § 1111 opinion (whether preexisting service, and whether aggravated by service). Upon reviewing the December 2019 VA reproductive disorder opinion, and when considering all the other evidence of record, the Board finds the evidence does not show the existence of any diagnosed heart disorder prior to service, at service entrance, or during service. As the Board had previously remanded for an opinion on preexistence, which may have left the implication to the Veteran that the Board would find a heart disorder preexisted service, in February 2020 the Board sent the Veteran a Fair Process Letter. See Smith v. Wilkie, 32 Vet. App. 332 (2020). The Board Fair Process letter explained that, in a future decision, the Board plans to find as fact that the evidence does not support the existence of any diagnosed heart disorder prior to service, at service entrance, or during service. The Veteran was provided 30 days to submit any evidence and argument in support of a finding that a heart aneurysm, or any other heart disorder, preexisted service, and/or supports a finding that the Veteran's histories of symptoms and diagnosis prior to service are credible and should be accepted as fact. To date, the Veteran has not responded to the Fair Process Letter. Nonetheless, as the Board must once again remand the issue of service connection for a heart disorder for a new VA medical opinion, the Veteran has additional time to submit the requested additional evidence and/or argument to show the existence of any diagnosed heart disorder prior to service, at service entrance, or, importantly for direct service connection purposes, during service. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision remands the issue of service connection for a heart disorder, no further discussion of VA's duties to notify and assist is necessary as to that issue. Turning to the issue of service connection for a gynecological disorder, concerning the duty to notify, the record reflects that the Veteran received adequate VCAA notice prior to the issuance of the rating decision on appeal. Regarding the duty to assist, the record reflects that VA obtained all relevant documentation and obtained an adequate VA gynecological examination in December 2019. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). For these reasons, the Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. REFERRED The issue of entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for residuals of a heart attack, claimed to have been caused by inadequate VA medical care, was raised in an October 2017 claim. To date, this 38 U.S.C. § 1151 claim has not been adjudicated; therefore, the issue is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. 1. Service Connection for a Gynecological Disorder is Denied Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person 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 (Fed. Cir. 2009). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence persuasively favors against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims file and adequately addresses the relevant evidence in the instant decision. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Having reviewed all the evidence of record, lay and medical, the Board finds that, shortly prior to and during the relevant period on appeal, the Veteran did not and has not had a current diagnosis of metrorrhagia, infertility, or any other gynecological disorder. In September 2014, VA received the Veteran's claim for the gynecological disorder of metrorrhagia (abnormal bleeding from the uterus). This claim was based upon service treatment records from the 1970s showing treatment for significant vaginal bleeding during service. Upon service connection being denied, in a January 2016 Notice of Disagreement (NOD), the Veteran argued that service connection was warranted because the in service vaginal bleeding was treated with a drug that could cause longterm sterility, cancer, and birth defects. In the subsequent June 2017 substantive appeal, via VA Form 9, the Veteran reported having being told by a doctor that the in-service injections to treat the vaginal bleeding caused amenorrhea (an absence of menstruation) and a cessation of ovulation. The Veteran acknowledged having children at the ages of 38 and 41, but still contended that she would never have chosen to have children so late in life if not for the in-service metrorrhagia treatment. Review of the available VA and private treatment records do not reflect that the Veteran was treated for any gynecological disorders either during or shortly prior to the relevant claim period on appeal. The Veteran received a VA gynecological examination in October 2019. Per the examination report, the Veteran explained that her claim was not for metrorrhagia, but that in-service treatment with Depo-Provera was the cause of her "prolonged infertility." Upon examination the VA examiner found that the Veteran did not have any currently diagnosed gynecological disorders. While the Veteran did have a previous diagnosis of metrorrhagia in 1977, the VA examiner assessed the disorder had long since resolved without residual. While the Veteran had difficulty conceiving for many years, the Veteran was able to have children at the age of 38 and 41. As such, the Veteran was not rendered infertile. While the Veteran has contended that she has a current gynecological disorder, the Board does not find that under the facts of this case the Veteran is competent to diagnose a gynecological disorder or relate it to service. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent). While the Veteran can report symptoms such as abnormal bleeding, specific gynecological disorders such as metrorrhagia, infertility, and other gynecological disorders are diagnosed not only on common overlapping symptoms such as abnormal bleeding, but also on clinical findings and physiological testing that requires specific medical knowledge and training that the Veteran has not been shown to possess. While the Veteran contends that in-service treatment for metrorrhagia caused "prolonged infertility," and actual infertility is a disability that may by subject to VA compensation, the Veteran in this case was not rendered infertile. The Veteran was able to have two children later in life at the ages of 38 and 41. Difficulty conceiving for any period of time that does not result in infertility is simply not a disability subject to service connection for VA rating purposes. For all the reasons discussed above, the Board finds that, to date, the Veteran has not been diagnosed with a current gynecological disorder, to include metrorrhagia and/or infertility. Again, the evidence of record reflects that the metrorrhagia during service in the 1970s resolved without residual decades prior to the compensation claim now on appeal. While the Veteran had difficulty conceiving, she was not rendered infertile, as she gave birth to two children in her lifetime. No other gynecological disorders have been diagnosed by a VA or private physician. As the preponderance of the evidence persuasively favors a finding that shortly prior to and during the relevant period on appeal, the Veteran did not and has not had a current diagnosis of metrorrhagia, infertility, or any other gynecological disorder, service connection for a gynecological disorder must be denied. REASONS FOR REMAND 2. Service Connection for a Heart Disorder is Remanded A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Where such defects, infirmities or disorders are not noted when examined, accepted, and enrolled for service, pursuant to 38 U.S.C. § 1111 and 38 C.F.R. § 3.304, in order to rebut the presumption of soundness on entry into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03. When the presumption of soundness is not rebutted, as in this case, the case converts to one for direct service connection. See Wagner at 1096. The Board remanded the issue of service connection for a heart disorder in its January 2019 Remand for a VA heart examination and opinion. Based upon the Veteran's representations that a heart disorder preexisted service and was known at service entrance, the Board directed the VA examiner to render opinions concerning whether one or more currently diagnosed heart disorders preexisted service, and if so, whether any such disorders were clearly and unmistakably not aggravated by service. Notwithstanding how the issue was previously framed, as discussed in the introduction, the Board now intends to find that the evidence of record does not support a finding that the Veteran had any diagnosed heart disorder prior to service, at service entrance, or during service. The Veteran was sent a February 2022 Fair Process Letter stating that the evidence, on the merits, was pointing to findings that there was no diagnosed heart disorder prior to service, at service entrance, or during service. For this reason, as the presumption of soundness applies to this claim (see 38 U.S.C. § 1111, 38 C.F.R. § 3.304) and has not been rebutted, this is a direct service connection case. This is a finding of fact that is favorable to the Veteran, as it relieves the Veteran or the evidence having to prove that a heart disability did not preexist service and/or worsened in severity during service. The Veteran (evidence) now only needs to prove onset of a heart disorder during service in order to obtain direct service connection. To the extent this issue has previously been loosely treated as to include a question of preexistence and aggravation of a heart disorder, and the presumption of soundness has not been rebutted, the presumption of soundness converts this case to one for direct service connection. See Wagner at 1096. For these reasons the Veteran was notified that this is a case of direct service connection, and not aggravation, and should present evidence on the theory of direct service connection. For the same reasons, the Board will now treat the service connection for heart disorder issue as one for direct service connection. Per the report from the October 2019 VA heart examination, the diagnosis was valvular heart disease, stable angina, coronary artery disease, myocardial infarction, and a resolved atrial septal aneurysm. In the corresponding opinion report, the VA examiner did not render adequate direct service connection opinions on the aforementioned heart disorders, because the VA examiner was focused on the preexistence question, which the Board has found irrelevant to the instant matter. As the VA examiner did not provide adequate direct service connection opinions as to all of the diagnosed heart disorders, as directed in the January 2019 Remand, the Board must once again remand this issue for a medical opinion. Considering the complexity of the medical question at issue, an opinion from a qualified examiner is preferred. The aforementioned issue is REMANDED for the following action: 1. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning any diagnosed heart disorders. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the disorders, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record all VA treatment records pertaining to the treatment of the Veteran's heart disorders, not already of record, for the period from February 2020. 3. Obtain a medical opinion from a qualified examiner. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The examiner should provide the following opinion: Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's currently diagnosed heart disorders, to include valvular heart disease, stable angina, coronary artery disease, myocardial infarction, and a resolved atrial septal aneurysm, had their onset in service or are otherwise related to service? In rendering this opinion, the VA examiner must not accept as fact the Veteran's prior assertions that she was diagnosed with a heart disorder prior to service, at service entrance, and/or during service. Rather, the examiner should focus on whether the lay and medical evidence of record, to include the Veteran's service treatment records, indicates that symptoms of one or more heart disorders first manifested during service. If the examiner opines that one or more of the currently diagnosed heart disorders are not related to service, the negative opinion should attempt to identify the cause of the heart disorders under the facts and circumstances of this specific Veteran's case. 2. Then, readjudicate the remanded issue of direct service connection for a heart disorder. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.