Citation Nr: 1754202	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  11-17 090	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for a hysterectomy.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

R. I. Sims, Associate Counsel



INTRODUCTION

The Veteran served on active duty from March 1985 to September 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that denied service connection for a hysterectomy.

This appeal has previously been before the Board, most recently in April 2017, when it was remanded to obtain a medical opinion.  The Board finds that its remand instructions have been substantially complied with, and the Board will proceed in adjudicating the Veteran's claim.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that when the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).


FINDING OF FACT

The weight of the evidence is against a finding that the Veteran's hysterectomy either began during or was otherwise caused by her military service.


CONCLUSION OF LAW

The criteria for service connection for hysterectomy have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1131, 1132 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  In this case, required notice was provided, and neither the Veteran, nor her representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009).  Thus, adjudication of her claim at this time is warranted. 

With respect to the duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c).  The Veteran's service treatment records, VA treatment records, and private treatment records have been obtained, to the extent available.  The Veteran elected to forego the option of presenting testimony at a Board hearing.

The Veteran was afforded two VA examinations in connection with her claim.  The July 2014 opinion is considered inadequate for purposes of rendering a decision in this matter as it provided insufficient reasons and basis for the conclusions given, and the improper standard of proof for the opinions given.  The Board finds the May 2017 opinion adequate.  The examination report indicates that the examiner reviewed the Veteran's claims file and past medical history, recorded her current complaints, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  The existing medical evidence of record is therefore adequate for the purpose of rendering a decision in the instant appeal.  38 C.F.R. § 4.2 (2015); Barr, 21 Vet. App. 303 (2007).  Neither the Veteran, nor her representative objected to the adequacy of the May 2017 examination.  See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011).

The Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, that the record includes adequate, competent evidence to allow the Board to decide this matter, and that the Veteran will not be prejudiced as a result of the Board's adjudication of her claim.

II.  Service Connection

The Veteran filed her claim for a hysterectomy in March 2008.  She asserts that her hysterectomy is related to gynecological problems and pregnancy experienced while in service, and continually since service.  

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131.  Service connection can be established by evidence that shows "(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." 38 C.F.R. § 3.310(a) (2016); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

Initially, the Board acknowledges that a hysterectomy is a current disability for VA purposes and service treatment records indicate the Veteran experienced gynecological problems.  Therefore, the remaining issue is whether a nexus exist between the Veteran's in-service gynecological treatment and hysterectomy which was performed years after service.  

The Veteran's pre-entrance examination in July1983 shows no indication of gynecological problems.  An April 1985 gynecological evaluation, performed a month after entrance on active duty, revealed a retroverted uterus.  An anteverted uterus was noted in August 1985.  During service, she was seen on several occasions for vaginal itch and infection.  In July 1986, the Veteran reported abnormal bleeding / bleeding between the menstrual cycle.  During service, she had normal pap smears. 

Post-service treatment records indicate the Veteran experienced several gynecological conditions and problems.  She underwent a tubal ligation in February 1992.  In August 1992, she experienced mild dysplasia, with features of HPV, and chronic cervicitis.  In 1994 and 1995, the Veteran was assessed as having both a retroverted and a retroflexed uterus.  In September 1996, the Veteran underwent a reversal of her tubal ligation.  Statements from the Veteran and treatment records indicate after the reversal procedure, she began to experience significant gynecological problems.  Specifically, the Veteran began to experience ectopic pregnancies, and severe cramping and bleeding associated with her menses.  In 1998, the Veteran was assessed as likely having dysfunctional uterine bleeding (DUB).  In 2005, the Veteran was diagnosed with premenstrual dysphoric syndrome (PMDD).  By 2008, the Veteran was noted to experience severe pain and bleeding with her menstrual cycle with right lower pelvic pain two weeks prior to the start of the cycle.  

The Veteran underwent a hysterectomy in February 2008, seventeen years after her separation from service.  In a March 2009 treatment note, Dr. Venegas noted that the hysterectomy was performed "because the patient's main problems were dysmenorrhea and severe pelvic and back pain."  Dr. Venegas noted the symptoms did not improve after 6 months of medical therapy and the Veteran was not a good candidate for alternative treatments, particularly because of the pain the Veteran experienced.  Dr. Venegas also noted that the pathology report after the surgery showed "evidence of fibroids that would cause pain and bleeding problems." 

In May 2017, the Veteran underwent a VA examination.  The examiner conducted an in-person examination as well as reviewed the Veteran's claims file.  The examiner found that the Veteran's hysterectomy was less likely than not incurred in, or caused by an in-service injury, event, or illness.  The examiner noted that according to Dr. Venegas, the surgeon who performed the Veteran's hysterectomy, the procedure was performed for severe dysmenorrhea (back and pelvic pain) that did not respond to medical treatments of NSAIDS and muscle relaxers.  In addition, Dr. Venegas noted that the Veteran was a smoker and thus not a candidate for birth control pills.  Dr. Venegas also stated ablation may have corrected the bleeding but not necessarily the pain.  The Veteran's 2008 pathology report was noted to show fibroids in the uterus that caused pain and bleeding.  The examiner also noted the Veteran's history of live birth without vaginal complication, an elective tubal ligation and reversal, and ectopic pregnancies.  The examiner noted the "Veteran had no history of uterine prolapse in service or fibroids, which likely caused her increased pain and bleeding."  The examiner also noted the Veteran's assertions that "as she got older, the cramping and bleeding would be more severe (prior to her hysterectomy) that she would miss the first day of her menstrual period from work as she was 'doubled over in pain'."

Regarding the Veteran's retroverted uterus and in-service gynecological problems, the examiner found that a nexus between these conditions and the hysterectomy could not be established.  The examiner also found that the Veteran's gynecological conditions were not aggravated by service.  The examiner noted that Dr. Venegas conducted an examination four months prior to the hysterectomy and there was no indication of a retroverted or anteverted uterus.  Specifically, the uterus was described as "normal size, shape consistency, deviation and position (not anteverted, retroflexed, or retroverted)."  Further, Dr. Venegas made no mention of the condition as a cause or contributing factor leading to the hysterectomy.  The examiner further notes that per mainstream medical literature, a tilted uterus occurs because as a woman matures, the uterus may not move into the forward position as it normally would.  Further, the examiner noted that a tilted uterus does not typically cause symptoms and most women do not even know they have this unless told by their gynecologist.  The examiner noted that about 1 in 4 women have a retroverted or retroflexed uterus.  

The Board finds the May 2017 VA examiner's opinion provides great probative value, as this opinion represents a thorough and reasoned medical analysis regarding the question of the cause of the Veteran's hysterectomy.  The opinion is fully grounded in the Veteran's medical history, most notably treatment records from the Veteran's gynecological surgeon who performed the hysterectomy.  The examiner was fully apprised of the Veteran's in-service gynecological symptoms and treatment, but clearly explained why she did not believe that the Veteran's hysterectomy was etiologically related to active service.  This opinion included a careful analysis of the specific gynecological conditions the Veteran experienced in service and an explanation of why such problems were not likely to have been the cause of the hysterectomy.

Consideration has been given to the Veteran's assertion that her hysterectomy is due to her active service.  Specifically, the Veteran argues that her first pregnancy in 1987 resulted in a retroflexed uterus that caused severe lower back pain and following pregnancy resulted in continued back pain and painful menstruation.  The Board acknowledges the Veteran experienced back problems while in service.  However, in 1988, after the Veteran's first pregnancy, such problems were attributed to her enlarged breast size.  The Board also acknowledges that service treatment records indicate the Veteran experienced a retroverted uterus (tilted back), an anteverted (tilted forward) uterus, and a retroflexed (tilted back) uterus.  However, the medical records also include examinations when the Veteran experienced a uterus of normal shape, size, and consistency, with no titling in any direction indicated.  Additionally, the Veteran was not assessed with abnormal menses, including diagnoses of PMDD and DUB, until approximately 7 years after her separation from service.  While the Veteran's treatment records indicate she experienced several gynecological conditions while in service, and after separation from service, they do not support the existence of a nexus between the Veteran's hysterectomy and military service.  Dr. Venegas specifically noted the Veteran's extreme pain as necessitating the hysterectomy.  Further, Dr. Venegas indicated that such pain would be caused by uterine fibroids indicated on the Veteran's pathology report.  

The Board finds that as a lay person, the Veteran is competent to report what comes to her through her senses, but she lacks the medical training and expertise to provide a complex medical opinion as to the question of what necessitated her hysterectomy.  See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Gynecological diseases that result in a hysterectomy, such as the Veteran's, are not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that physical examinations that include objective medical testing are needed to properly assess and diagnose such disorders.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Nothing in the record demonstrates that the Veteran has received any special training or acquired any medical expertise in evaluating gynecological disorders.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012).  Accordingly, the lay evidence alone cannot serve to link the Veteran's hysterectomy to her active service or to a service-connected disability.

The Board notes there is some question of whether the Veteran experience a pre-existing condition as related to a retroverted uterus.  The VA examiner's opinion makes clear that the Veteran's retroverted uterus was not a continuous condition and was not related to the cause of her hysterectomy, and as such is not germane to the Board's decision.  

Accordingly, service connection for a hysterectomy is not warranted.


ORDER

Service connection for hysterectomy is denied.


_________________________________________________
MATTHEW W. BLACKWELDER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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