Citation Nr: 18142204 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 15-26 815 DATE: October 15, 2018 ORDER Service connection for a right knee disorder is denied. Service connection for sleep apnea is denied. Service connection for an ovarian cyst is denied. Service connection for dermatitis/skin disorder of the face is denied. Service connection for a bone growth in the mouth is denied. Service connection for arthritis of the jaw/otalgia/temporomandibular joint (TMJ) disorder is denied. A total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. A right knee disorder has not been shown during the appeal period. 2. Sleep apnea was not shown in service and it is not caused by or related to any incident of service. 3. An ovarian cyst is not causally or etiologically related to service and is not proximately due to or aggravated by the service-connected endometriosis; the cyst/lipoma removed in service is included as part of the service-connected endometriosis. 4. Dermatitis/skin disorder of the face was not shown in service and it is not caused by or related to any incident of service. 5. A bone growth in the mouth has not been shown during the appeal period. 6. Arthritis of the jaw has not been shown during the appeal period; the current otalgia/TMJ disorder was not shown during service or otherwise caused by or related to any incident of service. 7. The Veteran’s service-connected disabilities do not preclude her from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. A right knee disorder was not incurred in service. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2018). 2. Sleep apnea was not incurred in service. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2018). 3. An ovarian cyst was not incurred in service nor was it caused by a service-connected disability. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2018). 4. Dermatitis/a skin disorder of the face was not incurred in service. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2018). 5. A bone growth in the mouth was not incurred in service. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2018). 6. Arthritis of the jaw/otalgia/TMJ disorder was not incurred in service. 38 U.S.C. §§ 1110, 1112, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2018). 7. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.341, 4.15, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1997 to March 1999 and from February 2010 to May 2012. She testified at a Travel Board hearing held before the undersigned Veterans Law Judge in July 2018. A transcript of the hearing is of record. Service Connection Claims Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Right Knee Disorder and Bone Growth in Mouth The Veteran claims that service connection is warranted for a right knee disorder and a bone growth in the mouth because they began during service. She testified that she sprained her right knee in service and that X-rays done in service showed a bone growth in her mouth. In addition to the laws and regulations outlined above, service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). “In the absence of proof of a present disability there can be no valid claim.” See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran filed her claims for service connection for a right knee disorder and a bone growth in the mouth in March 2013. During the appeal period, neither has been shown. Specifically, the service treatment records (STRs) do not reflect findings of a right knee disorder (including a right knee sprain as the Veteran contends) or a bone growth in the mouth. There is no X-ray study of the mouth showing a bone growth in service. The extensive Medical Evaluation Board findings, which note complaints and findings of numerous disorders, do not reflect any complaints or findings or any right knee disorder or bone growth in the mouth. Therefore, the disorders were not noted in the STRs. In addition, post-service VA treatment records do not reflect any complaints or findings of a right knee disorder or a bone growth in the mouth. An April 2011 VA examination report noted that examination of the oral cavity revealed no lesions or other abnormalities. While an August 2014 VA treatment record notes complaints of bilateral knee pain for years, the remainder of the VA treatment record specifically refers to only the left knee, for which the Veteran was prescribed a brace. No right knee findings or diagnosis were reported. Further, the April 2011 and June 2011 VA examinations do not reflect any right knee problems, or growth in the mouth. Notably, she complained of left knee clicking at the June 2011 VA examination, but did not relate any right knee complaints whatsoever. The Board places significant probative value on the clinical records, which do not show a diagnosis of a right knee disorder or a bone growth in the mouth. There is no contradicting medical evidence of record. Therefore, the medical evidence does not support the claims as no diagnoses are shown. Sleep Apnea The Veteran claims service connection is warranted for sleep apnea because it began during service. She testified that she underwent a sleep study in service while stationed in Hawaii but she was discharged before she got the results. The Veteran has a current diagnosis of sleep apnea. Specifically, a July 2013 VA treatment record reflects that a sleep study revealed a diagnosis of sleep apnea. As such, the requirement of a current disorder has been met. However, the STRs do not reflect any findings or complaints of sleep apnea, including snoring; nor do the STRs indicate sleep study results. No diagnosis of sleep apnea is documented in the STRs. While a February 2011 record notes a two- to three-month history of feeling tired, it was related to poor sleep from waking up due to pain. The February 2011 record specifically noted that the Veteran did not snore. It was also related that she slept about five hours each night and woke up due to headache pain and foot pain. Such absence of findings or treatment for any sleep disorder during service, in this context, is highly probative contemporaneous evidence that she did not have characteristic manifestations of sleep apnea during service. Therefore, the second element of service connection an in-service incurrence has not been shown. As previously noted, the Veteran contends that she had sleep apnea in service and had a sleep study to confirm it. However, the STRs do not support (and in fact, contradict) this contention. Instead, the record reflects the first diagnosis of sleep apnea was in July 2013 with no notation of any related symptoms in service or any prior diagnosis/findings. Moreover, the medical evidence of record does not reflect any nexus to service. Importantly, at the Board hearing the Veteran did not testify that any doctor had ever told her that her sleep apnea diagnosed after service in VA was related to service. Therefore, the medical evidence does not support the claim. Ovarian Cyst The Veteran contends service connection is warranted for an ovarian cyst because it began in service. She testified that she had problems with an ovarian cyst in service and that it was related to her irregular and heavy bleeding/endometriosis in service. She testified that she never had the cyst removed. The Veteran has a current diagnosis of a left ovarian cyst. Specifically, an August 2013 VA treatment record noted that pelvic ultrasound revealed a left ovarian cyst. Therefore, a current disorder is shown. (The Board also notes that a July 2013 VA treatment record notes that a cystic lesion along the right pelvic sidewall possible representing a right adnexal cyst was found on MRI of the lumbar spine. It was noted that pelvic ultrasound could be performed for further evaluation.) The STRs note ongoing and severe problems with endometriosis/irregular menstrual bleeding. Further, a May 2010 STR notes the Veteran’s complaints of left lower quadrant pain after sit-ups. A mass was noted on the left lower quadrant. A June 2010 general surgery report notes that she presented with groin pain and a firm, palpable left groin mass. Left inguinal soft tissue mass was removed. Another June 2010 STR notes that she was status/post incision and removal of left inguinal region endometrioma that seeded from previous C-section. An August 2010 service treatment record notes that the Veteran was status post mass removed from the left groin. She presented desiring an abdominoplasty, as she reportedly was unhappy with her stretch marks and appearance of her abdomen after multiple pregnancies. Medical Evaluation Board records from June 2011 note a diagnosis of menorrhagia, irregular menses, status post lipoma or cyst removal with scar (pathology report showed inflamed fibrovascular adipose tissue showing severe and diffuse endometriosis). An April 2011 VA examination report notes that the Veteran reported that she was diagnosed with an abdominal mass about a year earlier. She had surgery to remove the mass. The Veteran is currently service-connected for endometriosis, also diagnosed as residuals of abdominal mass removal with scar, claimed as menorrhagia and irregular menstrual cycle, rated as 10 percent disabling. An April 2014 VA opinion report states that the Veteran’s left ovarian cyst was less likely than not proximately due to or the result of the service-connected endometriosis. The examiner reasoned that ovarian cysts were a common finding in premenopausal women and were associated with the menstrual cycle or reproductive hormones. These cysts may present and resolve on their own. As in this Veteran, the cyst on the right was an incidental finding seen on an MRI of the lumbar spine. In a two-month period, that cyst on the right had resolved and a new cyst was seen on the transvaginal sonogram on the left. The examiner concluded that these cysts were of no medical significance and had no relationship to the Veteran’s endometriosis. While the STRs note that an abdominal mass/cyst was removed, the Veteran is service-connected for this disability as part of the service-connected endometriosis noted above. There is no other evidence of any ovarian cyst during service. Further, the medical evidence does not show that the current ovarian cyst is etiologically related to service. To the extent that the Veteran is claiming ongoing symptoms of endometriosis/irregular and heavy bleeding since service as the basis of the claim for direct service connection, these symptoms are accounted for in the already service-connected disability of endometriosis, also diagnosed as residuals of abdominal mass removal with scar, claimed as menorrhagia and irregular menstrual cycle. Therefore, the medical evidence does not support the claim. Service connection for an ovarian cyst as secondary to service-connected endometriosis is also not warranted. In this regard, the only medical opinion of record regarding secondary service connection weighs against the claim. As noted above, the April 2014 VA examiner reviewed the claims file and provided an opinion supported by a complete rationale. Dermatitis/Skin Disorder of the Face The Veteran claims service connection is warranted for dermatitis/a skin disorder of the face because it began during service. She testified that she had rashes on her face in service and was told she had a dermatological condition caused by stress. She also testified that received prescription ointments for her skin disorder of the face in service. She further testified that although she still has the same condition, she uses over the counter medication and sees VA dermatologists for it. The Veteran has a current diagnosis of facial acne and pseudofolliculitis barbae (PFB). Specifically, a July 2013 VA treatment record notes mild acne on the chin and an August 2013 VA dermatology treatment record reflects that she was seen for treatment for acne. It was specifically noted that she had no other skin complaints. It was noted that there were several hyperpigmented papules and terminal hairs on the chin; the cheeks were clear. The diagnoses included acne vulgaris and PFB. As such, the requirement of a current disorder has been met. The STRs do not reflect any findings or complaints of any skin disorder. Instead, STRs dated in June, July, September and December 2010 specifically note that there were no skin problems, including rashes and lesions. A February 2011 treatment record notes no skin symptoms/normal skin. Similarly, an April 2011 s treatment record notes normal skin. Such absence of findings or treatment for any skin disorder during service, in this context, is highly probative contemporaneous evidence that she did not have characteristic manifestations of a skins disorder during service. Therefore, the second element of service connection an in-service incurrence has not been shown. As previously noted, the Veteran contends that she had skin rashes in service for which she received ointment. However, the STRs do not support (and in fact, contradict) this contention. Instead, the record reflects the first diagnosis of acne and PFB in July and August 2013 with no notation of any report that symptoms began in service or any prior diagnosis. Moreover, the medical evidence of record does not reflect any nexus to service. Importantly, at the Board hearing the Veteran did not testify that any doctor had ever told her that her current skin disorder diagnosed after service through VA was related to service. Therefore, the medical evidence does not support the claim. Arthritis of the Jaw The Veteran claims that service connection for arthritis of the jaw is warranted because it began during service, manifesting itself as ear infections. She testified that she is service-connected for TMJ (however, the record reflects that she is not service-connected for TMJ) and the arthritis is separate from the TMJ. None of the post-service medical evidence reflects a diagnosis of arthritis of the jaw. However, an August 2013 VA treatment record notes that the Veteran reported intermittent and recurrent otalgia. She reported that the otalgia was worse on the left and it radiated to the jaw. She reported having three courses of otalgia that year with no prior history of ear disease. On examination the ears were clear; there was a crossbite with subluxation of left TMJ and pterygoid tenderness. The assessment was otalgia secondary to TMJ. Therefore, the requirement of a current disorder has been met. The STRs note that in December 2010 the Veteran reported epigastric pain that radiated to her right arm, neck and jaw. Examination of the ears was normal. The remainder of the STRs reflect no ear or jaw complaints. The April 2011 general medical VA examination reflects no complaints or findings with respect to her jaw or ears. Such absence of findings or treatment for any ear or jaw/TMJ disorder during service, in this context, is highly probative contemporaneous evidence that she did not have characteristic manifestations of any ear disorder, jaw arthritis, or TMJ disorder during service. Therefore, the second element of service connection an in-service incurrence has not been shown. As previously noted, the Veteran contends that arthritis of the jaw first manifested by ear complaints that were diagnosed in service. However, the STRs do not support (and in fact, contradict) this contention. Instead, the record reflects the first diagnosis of TMJ/otalgia is from 2013 with no complaints relating back to service. With respect to all the service connected claims, the Board has considered the Veteran’s lay statements that the disorders on appeal are related to service. She is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, she is not competent to offer an opinion as to the etiology of her disorders due to the medical complexity of the matters involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the examination report and clinical findings than to her statements. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). The central inquiry is whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran is service connected for an adjustment disorder at 50 percent, degenerative disc disease (DDD) of the lumbosacral spine at 20 percent, right rotator cuff tendinitis at 20 percent, left and right upper extremity radiculopathy at 20 percent each, left ankle tendinitis at 10 percent, DDD of the cervical spine at 10 percent, gastroesophageal reflux disease at 10 percent, endometriosis at 10 percent, traumatic brain injury at 10 percent, right lower extremity radiculopathy at 10 percent, and bunions of the right and left foot, vertigo, hypertension, migraine headaches, and abdominal scar, all rated as noncompensable. The combined rating is 80 percent from May 7, 2012 and 90 percent from March 5, 2014. As such, the minimum schedular criteria for TDIU are met. Overall, the evidence weighs against a finding that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with her education and occupational experience. Importantly, the record reflects that she is currently employed full time as a nurse manager, which she testified was an administrative position/office work. According to her VA Form 21-8940, the Veteran claims she is unemployable due to her service-connected cervical spine disorder, lumbar spine disorder, right shoulder disorder and adjustment disorder with mixed anxiety and depressed mood. She indicated that she had only a college education. However, the records reflect that she has a nursing degree and she testified that she wanted to finish her Master’s Degree so she can move into a position involving leadership/hospital administration. The fact that the Veteran is currently employed full time weighs heavily against the claim. Further, there is no medical evidence suggesting that she is unemployable due to her service-connected disabilities. While there are functional limitations, as detailed below, the evidence does not show that she is precluded from employment due to her service connected disabilities. Specifically, the March 2014 VA examination report notes that the Veteran should avoid prolonged standing, walking and running due to her ankle disorder and she should avoid overhead reaching or lifting due to her shoulder disorder. The March 2014 VA cervical spine examiner opined that during flare-ups the Veteran required help with activities of daily living due to her cervical spine disorder. A June 2013 VA lumbar spine examination report notes that due to the Veteran’s lumbar spine disorder she must avoid bending, lifting over ten pounds, and prolonged sitting or standing. In support of her claim, the Veteran has not submitted any competent evidence, other than her own lay assertions, that her service-connected disabilities preclude employment. However, her statements are assigned less probative weight than the medical opinions which weigh against the claim. Given the above, especially the fact that she is currently employed full-time, entitlement to a TDIU is not warranted as she is not precluded from obtaining and maintaining gainful employment as a result of her service-connected disabilities. As such, the benefit of the doubt doctrine is inapplicable, and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Redman, Counsel