Citation Nr: 1805814 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-09 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a disorder characterized by right foot numbness. 3. Entitlement to service connection for a disorder characterized by left foot numbness. 4. Entitlement to service connection for uterine fibroids. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran had active duty service in the U.S. Army from June 1990 to June 2010. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Board notes that although the issue of entitlement to service connection for a heart murmur was included on the July 2017 VA Form 8 (Certification of Appeal), this inclusion was in error. On the March 2014 VA Form 9, the Veteran clearly specified that she was only appealing the issues listed above on the title page. In Percy v. Shinseki, 23 Vet. App. 37 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the 60-day period in which to file a substantive appeal is not jurisdictional, and thus, VA may waive any question of timeliness in the filing of a substantive appeal. In that case, by treating a disability rating matter as if it were part of the Veteran's timely filed substantive appeal for more than five years, VA had waived any objections it might have had to the timeliness of the appeal with respect to the matter. Unlike the claimant in Percy, in this Veteran's case, VA has not "consistently treated this matter as if it was part of the timely filed Substantive Appeal." Percy, 23 Vet. App. at 46. In this regard, the Board observes that in September 2015, while the present appeal was pending, the Veteran submitted another claim for service connection for a low back disorder, left and right feet numbness, uterine fibroids, and a heart murmur. Significantly, VA only developed the issue involving a heart murmur and in a January 2016 rating decision denied only entitlement to service connection for a heart murmur. These actions are consistent with treating the heart murmur issue as not having been perfected and, indeed, in a February 2016 letter notifying the Veteran of the January 2016 denial, VA advised the Veteran that entitlement to service connection for a heart murmur had been denied and that "[t]he remainder of your claim is on appeal and will be addressed [in] a separate decision at a later date." The letter further advised the Veteran that if she disagreed with the decision, she had one year from the date of the letter to initiate an appeal. The Veteran did not appeal the January 2016 rating decision and indeed submitted no document to VA during the one year following notice of this rating decision. Although the Board acknowledges that in July 2017 VA issued a supplemental statement of the case which included the issue of entitlement to service connection for a heart murmur, in light of the above, the Board does not find that VA has consistently treated this issue as if it was part of the appeal. Accordingly, the facts of this case are distinguished from Percy, and the issue of entitlement to service connection for a heart murmur is not in appellate status, and is not before the Board. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records. The issues of entitlement to service connection for disorders characterized by left or right foot numbness are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence is evenly balanced as to whether the Veteran's current chronic thoracolumbar spine strain began during service. 2. The evidence is evenly balanced as to whether the Veteran's current uterine fibroids began during service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for establishing service connection for chronic thoracolumbar spine strain have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. Resolving reasonable doubt in favor of the Veteran, the criteria for establishing service connection for uterine fibroids have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Principles and Analysis 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; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a veteran must show: "(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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Low Back Disorder The Veteran contends that she has recurrent back pain which first began in service. Initially, the Board finds that the Veteran has met the current disability requirement. Although there are no diagnosed low back disabilities at the time of her July 2012 claim or thereafter, a November 2010 VA examination (obtained in connection with claims unrelated to the present appeal) shows a diagnosis of thoracolumbar spine chronic strain and a February 2012 treatment record shows a diagnosis of lumbago. Although lumbago is tantamount to a notation of back pain, the Board finds the November 2010 thoracolumbar spine chronic strain diagnosis appeared close enough in time to the July 2012 claim to meet the criteria for the current disability requirement. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). Service treatment records show, in pertinent part, that in October 2002, the Veteran complained of left-sided back spasms for one week. The diagnosis was low back pain. Thereafter, in January 2008, the Veteran complained of low back pain following a motor vehicle accident. She reported that the pain worsened with movement and activity and improved with rest and ibuprofen. She described the pain as dull and throbbing but denied radiation to her legs or hips or other neurological symptoms. Physical examination revealed tenderness to palpation lateral to L3-L4 bilaterally. Pain worsened with extension and rotation to the left. Muscles of the lower back were noted to feel tight and the examiner noted that the lumbar spine exhibited abnormalities. Although the assessment was "lower back pain," the doctor noted that there was tenderness along the erector spinae and psoas muscles of the lower back and that based on the absence of neurologic symptoms and point tenderness at the vertebral bodies, the injury was most likely musculoskeletal in etiology. The Veteran was put on a temporary profile. At a February 2010 separation examination, although the examiner found a normal clinical evaluation of the spine, the Veteran checked a box indicating that she experienced recurrent back pain, which was explained as "back spasms, Oct 02 [sic]." Post-service, at the November 2010 VA examination, the Veteran reported experiencing a constant low back pain for the last one to two months involving tightness and occasional spasm. She indicated that before then she experienced flare-ups about every two weeks, which were moderate in intensity and would last about one day. As noted above, the diagnosis was thoracolumbar spine chronic strain. A February 2012 treatment record shows that the Veteran again complained of low back pain which started that morning. She reported that in the past she has experienced low back pain intermittently. The Board finds that the evidence in this case is evenly balanced as to whether the Veteran's current thoracolumbar spine chronic strain began during service. The Veteran contends that she has experienced recurrent back pain which began during service. Although the Veteran is a lay person and therefore not competent to render a diagnosis requiring medical testing and expertise, she is competent to report symptoms she experiences through her senses, such as back pain. The Board finds her statements in this regard to be credible as low back pain was reported multiple times during service, at separation, and soon after separation from service. Moreover, the November 2010 examiner's identification of the thoracolumbar spine strain as being chronic further supports the proposition that her low back pain has been ongoing and is currently the result of a muscle strain. Although the fact that the separation examination revealed a normal spine upon clinical evaluation raises some doubt as to whether the back strain has been ongoing since service, in both November 2010 and February 2012, the Veteran described her back pain as recurrent with periods of time when it is worse and periods when it is improved. A normal spine evaluation at separation is therefore not necessarily inconsistent with a chronic spine strain as described by the Veteran. The Board also finds it significant that the chronic spine strain diagnosis appeared soon after the Veteran separated from service. In sum, while there is some evidence against the Veteran's claim for service connection for a low back disorder, including the lack of an explicitly articulated nexus opinion, overall, the evidence in favor of the claim carries enough weight to render the evidence in equipoise. The Veteran is therefore entitled to the benefit of the doubt. 38 U.S.C.A. § 5107. Uterine Fibroids The Veteran also claims entitlement to service connection for uterine fibroids. As above, the Board finds that there is sufficient evidence to grant this claim. In this regard, initially, the evidence shows that the Veteran has met the current disability requirement. The November 2010 VA examiner noted a diagnosis of uterine fibroids and a June 2015 treatment record notes that a July 2011 pelvic ultrasound showed uterine fibroids. Moreover, the February 2010 separation examination indicates that the Veteran's uterine fibroids first manifested during service around September 1994. Thereafter, fibroids were noted multiple times during service to include in April and June 2004. At separation, the Veteran reported a history of fibroids and although fibroids were not noted upon clinical evaluation, the examination report indicates that a pelvic examination was not conducted. In sum, as above, while there is some evidence against the Veteran's claim for service connection for uterine fibroids, including the lack of an explicitly articulated nexus opinion, overall, the evidence in favor of the claim, particularly, the diagnoses of uterine fibroids both during service and very soon after separation from service, carries enough weight to render the evidence in relative equipoise. The Veteran is therefore entitled to the benefit of the doubt. 38 U.S.C.A. § 5107. ORDER Entitlement to service connection for chronic thoracolumbar spine strain is granted. Entitlement to service connection for uterine fibroids is granted. REMAND As to the claim for left and right foot numbness, service treatment records show complaints of bilateral foot numbness. See October 2008, November 2008, October 2009 service treatment records and February 2010 separation examination. At the November 2010 VA examination, the Veteran also reported bilateral foot numbness. Significantly, however, the examiner there was unable to identify a specific disorder as the examiner's diagnosis was "bilateral foot numbness of undetermined etiology." The service treatment records addressing the foot numbness similarly reflected that it was difficult to identify the pathology and etiology for these symptoms. Significantly, the Veteran's DD-214 shows that she served in Kuwait after August 2, 1990. She therefore served in the Southwest Theater of Operations during the Persian Gulf War and is thus a Persian Gulf Veteran. Accordingly, she may be entitled to compensation for an undiagnosed illness or medically unexplained chronic multisymptom illness. 38 U.S.C.A. § 1117(a)(2)(A), (B); 38 C.F.R. § 3.317(a)(2)(A),(B) (2017). Significantly, signs or symptoms of such illness include neurological signs and symptoms. 38 C.F.R. § 3.317(b)(6). As no VA examination has been obtained in connection with this claim (the November 2010 VA examination was obtained in connection with claims unrelated to the present appeal), the Board finds that a VA examination is warranted. The Board additionally notes that in November 2012, VA attempted to contact the Veteran by phone and by mail in order to schedule her for VA examinations in connection with the issues on appeal but she never responded and later that month the examination requests were cancelled. The Veteran is hereby notified that it is her responsibility to report for the examination and to cooperate in the development of the claim. In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination as to the etiology of her left and right foot numbness. All necessary tests should be conducted. The claims file should be reviewed by the examiner. The examiner should first indicate whether the Veteran experiences any neurological signs or symptoms of the left or right foot that have not been attributed to a known clinical diagnosis. If the Veteran's neurological signs or symptoms cannot be attributed to a known clinical diagnosis, the examiner should indicate if the symptoms have persisted for 6 months or more. Then, as to any diagnosed neurological disorder of the left or right foot, the examiner should indicate whether it is at least as likely as not (50 percent probability or more) that such disorder is related to or had its onset during any period of the Veteran's military service. A complete rationale should accompany any opinion provided. 2. The Veteran is hereby notified that it is her responsibility to report for the examination and to cooperate in the development of the claims. In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 3. After completion of the above, readjudicate the claims. If any benefit requested on appeal is not granted to the Veteran's satisfaction, the appellant and her representative should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the last supplemental statement of the case, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. 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). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs