Citation Nr: 1636605 Decision Date: 09/19/16 Archive Date: 09/27/16 DOCKET NO. 11-33 568 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri s THE ISSUES 1. Entitlement to service connection for a lymph node disorder. 2. Entitlement to service connection for cervical dysplasia. 3. Entitlement to service connection for a skin disorder characterized by cellulitis of the chin and above the eye. 4. Entitlement to a rating in excess of 20 percent for service-connected right shoulder disorder. 5. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from October 1998 to October 2002 and from September 2003 to February 2004, including service in Southwest Asia (Qatar). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in May 2015. A transcript of this hearing is of record. This case was previously before the Board in July 2015 when the Board assigned a 20 percent rating for the service-connected right shoulder disorder. Additionally, the Board remanded the following issues for further development: entitlement to a rating in excess of 20 percent for the right shoulder disorder; entitlement to a separate rating for neurologic impairment of the right shoulder; entitlement to service connection for cervical dysplasia; entitlement to service connection for endometriosis; entitlement to service connection for polycystic ovary syndrome; entitlement to service connection for a lymph node disorder; entitlement to service connection for a skin disorder characterized by abscesses and cellulitis on the chin and above the eye; and entitlement to TDIU. The Board observes that a separate rating was subsequently established for a neurologic disability of the right upper extremity (radiculopathy) by an April 2015 Decision Review Officer (DRO) decision. Service connection was also established by this decision for endometriosis and polycystic ovary syndrome; and acne, claimed as skin condition characterized by abscesses. The Veteran has not, to the Board's knowledge, expressed dissatisfaction with this decision to include the initial ratings assigned for these disabilities or effective dates thereof. Therefore, these matters have been resolved and are no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (Where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). As detailed in an April 2016 Supplemental Statement of the Case (SSOC) service connection continued to be denied for a lymph node disorder, cervical dysplasia, and a skin disorder characterized by cellulitis on the chin and above the eye. Further, it was determined that a rating in excess of 20 percent for the right shoulder, and a TDIU due to service-connected disability, was not warranted. These issues have been returned to the Board for additional appellate consideration. For the reasons addressed in the REMAND portion of the decision below, the Board finds that further development is still required regarding the right shoulder and TDIU claims. Accordingly, these claims are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The competent and credible evidence of record reflects it is at least as likely as not that the Veteran has recurrent lymphadenopathy as a result of her active service. 2. The preponderance of the competent medical and other evidence of record is against a finding the Veteran developed a disability of cervical dysplasia that was incurred in or otherwise the result of her active service. 3. The preponderance of the competent medical and other evidence of record is against a finding the Veteran currently has a skin disorder characterized by cellulitis of the chin and above the eye that was incurred in or otherwise the result of her active service. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for lymphadenopathy are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. The criteria for a grant of service connection for cervical dysplasia are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). 3. The criteria for a grant of service connection for a skin disorder characterized by cellulitis of the chin and above the eye are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. 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). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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 particular 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 at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran essentially reports that she developed recurrent lymph node problems, cervical dysplasia, and cellulitis as a result of her active service and thus service connection is warranted. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015). General Legal Criteria - Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Analysis - Lymph Node The Board notes the Veteran reported at a July 2012 VA examination that when she received each of her anthrax vaccinations for her deployment in 2003, her lymph nodes swelled up. Further, after she was discharged from active duty in February 2004, her lymph nodes continued to be swollen, and she was advised to go to an adverse reaction clinic, although she did not follow through at that time. The examiner noted that an MRI was ordered in January 2004, with the reason for the study listed as deep neck lymphadenopathy, but the MRI results showed normal cervical soft tissues. The Veteran reported that every 1-2 months, her lymph nodes would swell for about a week at a time, and then resolve. The Board acknowledges that the July 2012 VA examiner concluded that the Veteran did not have a current lymph node disorder; that there was insufficient medical evidence to warrant a diagnosis of deep lymphadenopathy and lymph node disorder in the neck and head at the time of the examination. However, the Veteran reported, to include at her May 2015 hearing, that her lymph node disorder produced intermittent as opposed to constant symptoms. Therefore, the Board remanded this claim in July 2015 to accord the Veteran a new examination to evaluate the claimed condition during an active stage, if possible. See Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994). At a March 2016 VA examination, the Veteran reported that she had occasional episodes of lymphadenopathy that occurred approximately quarterly and last for 1-2 weeks. Granted, the examiner noted these were not apparent on the examination itself, or described in VA treatment records. Nevertheless, the examiner also opined that recurrent lymphadenopathy was at least as likely as not to have been caused by in-service anthrax vaccination, explaining that such adverse effects were consistent with this type of vaccination, and referenced medical treatise evidence to support this assertion. The Board observes that it appears this claim was denied below due to the lack of documented findings of lymphadenopathy on the VA examinations and treatment records. However, it does appear that the March 2016 VA examiner found the Veteran's account of intermittent/recurrent symptoms to be competent and credible. Moreover, as noted above, the law mandates resolving all reasonable doubt in favor of the Veteran. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the competent and credible evidence of record reflects it is at least as likely as not that she has recurrent lymphadenopathy as a result of her active service. Therefore, service connection is warranted for this disability. Analysis - Cervical Dysplasia The Board acknowledges that the record reflects the Veteran has experienced both in-service and post-service gynecological problems. For example, service treatment records from December 1998 reflect complaints of abdominal pain and irregular vaginal bleeding, and an ovarian cyst was diagnosed. Subsequent service treatment records from March 1999 show continued treatment for an ovarian cyst. In September 1999, a history of menorrhagia was noted, along with ovarian masses and possible vaginitis. Two pap smears conducted during active service returned abnormal results, suggesting cervical dysplasia. A follow-up for dysplasia with repeat Pap smear in August 2001 revealed specimen findings that were within normal limits. After service, the Veteran was found to have an ovarian cyst in 2007, and endometriosis was also formally diagnosed in 2007. She underwent a total hysterectomy and bilateral salpingo-oophorectomy in September 2010. Pre- and post-operative diagnoses were pelvic pain, uterine prolapse, and endometriosis. A July 2012 VA examination revealed that the claimed conditions of cervical dysplasia, endometriosis, and polycystic ovary syndrome were no longer present due to the September 2010 hysterectomy. However, in July 2015 the Board noted that the requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As the Veteran filed her case in August 2009, the Board concluded that a clarify medical opinion was necessary to determine whether each of these three conditions were present between August 2009 and September 2010, and if so, whether they had their onset in service or were otherwise etiologically related to service. The March 2016 VA examination essentially states that the Veteran's gynecological problems were due to endometriosis and polycystic ovary syndrome, and, as already noted, service connection has been established for these disabilities. However, the examiner also found that the Veteran did not have any disability due to cervical dysplasia, either at the time it was initially diagnosed or during the period between 2009 and the Veteran's hysterectomy. Further, the examiner stated that this condition is associated with an increased risk of malignancy; otherwise, it would not normally cause disability. VA examiners are presumed qualified to render competent medical opinion(s), and nothing in the record reflects the Veteran has challenged the competency of the March 2016 VA examiner. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also 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."). Here, the March 2016 VA examiner was familiar with the Veteran's medical history from review of her VA claims folder, and accurately summarized pertinent findings of her medical history in the examination report. The examiner's opinion was not expressed in speculative or equivocal language. Moreover, as noted above, the examiner's opinion was supported by stated rationale which referenced medical principle. Further, no competent medical evidence is of record which refutes the opinions expressed by the March 2016 VA examiner on this matter. Accordingly, the Board finds this examination and opinion to be adequate, persuasive, and entitled to significant probative value in the instant case. In view of the foregoing, the Board finds the preponderance of the competent medical and other evidence of record is against a finding the Veteran developed a disability of cervical dysplasia that was incurred in or otherwise the result of her active service. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal with respect to this claim must be denied. Analysis - Cellulitis The Veteran contends she developed recurrent skin problems due to service, to include abscesses and cellulitis. She indicated that this condition was also due to her in-service anthrax vaccination. At the July 2012 VA examination she reported that by 2005, she began to experience minor acne intermittently. Further, when she was placed on hormones for fertility treatment, the acne became much worse and she developed cellulitis and an abscess on her chin in April 2008, which needed to be drained. She also reported that a second abscess needed to be drained above her left eyebrow when she was two months pregnant (i.e. in 2009), and a third abscess located on her mid chin was drained in 2011. The July 2012 VA examiner concluded that the Veteran did not have a current skin disorder and opined that the Veteran's prior history of cellulitis and abscesses were acute episodic problems that developed after the Veteran was placed on hormones for fertility treatment. The examiner also opined that the Veteran did not experience skin symptoms that represented a chronic multisymptom illness. Similar to the lymph node claim, as the Veteran reported intermittent/recurrent skin problems to include at the May 2015 hearing, the Board remanded this case in July 2015 for a new examination to evaluate the claimed condition during an active stage, if possible. The March 2016 VA examiner subsequently concluded that the Veteran did have a current skin disorder (including abscess formation) that was at least as likely as not due to the in-service anthrax vaccination. However, the examiner also opined that cellulitis on the chin and above the eye was less likely than not to have been caused by the in-service anthrax vaccination. In support of this opinion, the examiner noted that clinical findings documented by VA dermatologists and myself on physical exam today were more consistent with acne, rather than cellulitis of the face. In addition, the examiner noted that acne is a much more common condition on the face of young adults than cellulitis. The Board has already noted that the March 2016 VA examiner is presumed qualified to render a competent medical opinion, and was familiar with the Veteran's medical history. The examiner's opinion as to the claimed cellulitis was not expressed in speculative or equivocal language. Further, it was supported by stated rationale to the effect that the examination findings and treatment records reflect her skin condition was consistent with recurrent acne and abscesses, but not cellulitis. No competent medical opinion is of record which explicitly refutes the March 2016 VA examiner on this matter. Therefore, the Board concludes this opinion is also adequate, persuasive, and entitled to significant probative value in the instant case. In view of the foregoing, the Board concludes the preponderance of the competent medical and other evidence of record is against a finding the Veteran currently has a skin disorder characterized by cellulitis of the chin and above the eye that was incurred in or otherwise the result of her active service. Therefore, the benefit of the doubt doctrine is not applicable, and the claim must be denied. ORDER Service connection for lymphadenopathy is granted. Service connection for cervical dysplasia is denied. Service connection for a skin disorder characterized by cellulitis of the chin and above the eye is denied. REMAND Regarding the service-connected right shoulder disorder, the Board notes the Veteran has reported recurrent pain as a symptom of this disability. Further, the Court recently held in Correia v. McDonald, 28 Vet. App. 158 (2016) that the testing listed in the final sentence of § 4.59 is required unless a medical examiner determines that it cannot or should not be conducted. The pertinent sentence states that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight- bearing and, if possible, with the range of the opposite undamaged joint. Here, it does not appear the range of motion testing conducted on the pertinent VA examinations of the low back and cervical spine disabilities are in accord with this requirement, to include the most recent examination of this disability in March 2016. As such, the Board must find that this examination is inadequate for resolution of this claim. In regard to the TDIU claim, the Board notes that resolution of the right shoulder claim may affect whether the Veteran is entitled to this benefit. The initial rating assigned for the lymphadenopathy may also affect the TDIU claim, but the Board is precluded from assigning such a rating in the first instance. Therefore, these issues are inextricably intertwined, and the Board must defer adjudication of the TDIU claim until the development required for the right shoulder claim is completed and the initial rating for the lymphadenopathy is assigned. See Harris v. Derwinski, 1 Vet. App. 180 (1991) The Board further notes, regarding the TDIU claim, that the Veteran was sent correspondence in January 2016 requesting she complete a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). To date, the record does not reflect the Veteran has submitted a VA Form 21-8940 or comparable statement containing the information requested by this Form. In pertinent part, a VA Form 21-8940 asks a veteran which service-connected disability or disabilities prevent him or her from securing or following a substantially gainful occupation, and the treatment he or she has received for the disability(ies). The veteran is further asked to supply information about his or her employment, including dates when his or her disability(ies) affected full-time employment, the date the veteran last worked full-time, and the date the veteran became too disabled to work. The VA Form 21-8940 also requests information regarding the veteran's employment, educational, and training history, to include all employers for the last five years, the hours worked per week, the time lost from illness, the circumstances under which the veteran left his or her last job, and whether the veteran has attempted to obtain employment since he or she became too disabled to work. As such information can be critical to resolution of this case, the Veteran's failure to provide it could constitute abandonment of the TDIU claim. See 38 C.F.R. § 3.158; see also Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). As a remand is otherwise required in this case, the Board finds the Veteran should be provided with another opportunity to submit a completed VA Form 21-8940 or a comparable statement. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Request the Veteran to provide VA with a completed VA Form 21-8940, (Veteran's Application for Increased Compensation Based on Unemployability) or a comparable statement as to the information requested on this Form. 2. Request the names and addresses of all medical care providers who have treated the Veteran for her right shoulder since March 2016. Even if the Veteran does not respond, determine if there are any VA medical records for the pertinent period. After securing any necessary release, obtain those records not on file. 3. Notify the Veteran that she may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of her right shoulder symptoms and the impact of this condition, and her other service-connected disabilities, have upon her ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to evaluate the nature and severity of her service-connected right shoulder disorder. The claims folder should be made available to the examiner for review before the examination. It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. Further, in accord with the requirements of 38 C.F.R. § 4.59, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight- bearing and, if possible, with the range of the opposite undamaged joint; or an explanation from the examiner that any such testing cannot or should not be conducted. A complete rationale for any opinion expressed must be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation. 5. After completing any additional development deemed necessary, readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review. The determination as to the TDIU claim should reflect consideration of whatever initial rating(s) is assigned for the lymphadenopathy. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and her representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the last SSOC in April 2016, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs