Citation Nr: 18146418 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 15-27 242A DATE: October 31, 2018 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for right breast mass is denied. Entitlement to service connection for right ovarian cyst status post laparoscopy is denied. Entitlement to an initial rating of 70 percent for posttraumatic stress disorder, (PTSD) (also claimed as anxiety, depression and insomnia), prior to March 17, 2015, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to service connection for migraine headaches is granted. REMANDED Entitlement to service connection for lumbar strain is remanded. FINDINGS OF FACT 1. The Veteran does not have hypertension which was incurred in or otherwise related to her active service. 2. The Veteran does not have a right breast mass, non-malignant (resolved) condition which was incurred in or otherwise related to her active service 3. The Veteran does not have a right ovarian cyst status post laparoscopy, resolved, condition which was incurred in or otherwise related to her active service. 4. Prior to March 17, 2015, the Veteran’s service-connected PTSD symptoms and overall impairment have more nearly approximated deficiencies in most areas, but not total occupational and social impairment. 5. The Veteran had headaches in service and was diagnosed with migraine headaches, a chronic disease, shortly after service. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for right breast mass have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). 3. The criteria for service connection for right ovarian cyst status post laparoscopy, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). 4. Prior to March 17, 2015, the criteria for an initial 70 percent rating, but no higher, for PTSD have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 5. The criteria for service connection for migraine headaches have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 17, 1995 to July 16, 1999, from April 17, 1995 to August 30, 1999 and from February 1, 2000 to December 28, 2011. This matter came to the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO). In a July 2015 rating decision, the RO increased the rating for PTSD to 100 percent, effective March 17, 2015. Although a higher rating has been granted, this issue remains in appellate status, as the maximum available benefit has not been assigned. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that in connection with her appeal, the Veteran requested and was scheduled for a videoconference hearing before a Veterans Law Judge, to be held in October 2018. Prior to the hearing, however, the Veteran cancelled her hearing request. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge 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). Service connection for certain enumerated chronic disabilities, including hypertension and organic diseases of the nervous system, may be also be established on a chronicity or continuity basis under 38 C.F.R. § 3.303(b). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. See also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that the continuity of symptomatology provisions apply only to listed chronic conditions). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107 (b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). 1. Hypertension, Right Breast The Veteran seeks service connection for hypertension and right breast disabilities. She contends that such disabilities are due to her military service. For the following reasons, the Board finds that the preponderance of the evidence is against the claim. The Veteran’s service treatment records indicate that the Veteran had an elevated blood pressure reading of 141/81 in May 2007. In January 2008, the Veteran exhibited a lump or mass on her right breast. In February 2008, a right breast ultrasound revealed a dilated duct within the 10 o’clock position which contained a solid nodule suspicious for a papilloma. A biopsy was recommended for further evaluation. In February 2008, a right breast biopsy showed no definitive breast parenchyma was identified and it was negative for atypia. In August 2011, the Veteran underwent a VA medical examination prior to separation from military service. She reported a blood pressure reading of 141/81 in May 2007. The Veteran indicated that a blood pressure diary was kept and no other elevation in blood pressure was recorded. She stated that she was not put on any blood pressure medications. The Veteran’s current blood pressure readings were 117/85, 108/77, and 111/79. The examiner noted no objective findings to support diagnosis of hypertension and no functional limitations. During the VA examination, the Veteran reported that she initially found a right breast mass on a gynecological breast exam while on active duty. Upon examination, the examiner noted right breast mass, non-malignant, and no functional limitations. Post-service treatment records are similarly negative for findings of hypertension and right breast conditions. For example, an August 2013 mammogram with ultrasound found no mammographic findings concerning for malignancy, and was categorized as benign. The Veteran has therefore not met her burden of showing that she has current hypertension and right breast disabilities for VA purposes. The current disability element of a service connection claim may be defined broadly, see 38 U.S.C. § 1701 (1) (“The term ‘disability’ means a disease, injury, or any other physical or mental defect”), and need not be shown at the time of the Board decision. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim; Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). Here, however, the evidence of record does not demonstrate that the Veteran has had a disability related to hypertension and her right breast at any time during the course of the appeal. She has thus failed to establish an essential element of these service connection claims. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (holding that section 1110 of the statute requires the existence of a current disability for VA compensation purposes); 38 U.S.C. § 5107 (a) (a claimant has the responsibility to present and support a claim for VA benefits); Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the “support” requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his benefits claim). Based on the foregoing, the preponderance of the evidence is against the claims of entitlement to service connection for hypertension and right breast disabilities. The benefit of the doubt doctrine is therefore not for application, and the claims for service connection for hypertension and right breast disabilities must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Right Ovarian Cyst The Veteran seeks service connection for right ovarian cyst status post laparoscopy disability. She contends that such disability is due to her military service. For the following reasons, the Board finds that the preponderance of the evidence is against the claim. The Veteran’s service treatment records indicate that the she complained of lower abdominal cramping and pain. She was diagnosed as having a ruptured right ovarian cyst and had laparoscopic surgery. She was treated with birth control pills, but had irregular periods. Subsequent service treatment records indicate that the Veteran reported a period of 25 days with cramping. A diagnosis of dysmenorrhea and continuation of birth control pills was noted. The Veteran’s service treatment records also reflect a diagnosis of stress reaction irregular vaginal bleeding. In August 2011, the Veteran underwent a VA medical examination prior to separation from military service. She was 38 weeks pregnant and reported no complications getting pregnant or complications during her pregnancy. The examiner noted that the Veteran did not currently have symptoms related to a gynecological condition, including any diseases, injuries or adhesions of the female reproductive organs. The examiner noted an impression of right ovarian cyst, status post laparoscopy, resolved with no functional limitations; and irregular vaginal bleeding, resolved with no functional limitations. Post-service treatment records are similarly negative for findings of a right ovarian cyst condition. The Veteran has therefore not met her burden of showing that she has a current right ovarian cyst status post laparoscopy disability for VA purposes. The current disability element of a service connection claim may be defined broadly, see 38 U.S.C. § 1701 (1) (“The term ‘disability’ means a disease, injury, or any other physical or mental defect”), and need not be shown at the time of the Board decision. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim; Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). Here, however, the evidence of record does not demonstrate that the Veteran has had a disability related to a right ovarian cyst status post laparoscopy condition at any time during the course of the appeal. She has thus failed to establish an essential element of this service connection claim. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (holding that section 1110 of the statute requires the existence of a current disability for VA compensation purposes); 38 U.S.C. § 5107 (a) (a claimant has the responsibility to present and support a claim for VA benefits); Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the “support” requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his benefits claim). Based on the foregoing, the preponderance of the evidence is against the claim for entitlement to service connection for right ovarian cyst status post laparoscopy disability. The benefit of the doubt doctrine is therefore not for application, and the claim for service connection for right ovarian cyst status post laparoscopy disability must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. PTSD Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an [initial] rating on appeal was erroneous....” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Id. The criterion for rating PTSD disorder is contained in the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted when there is objective evidence demonstrating occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory, for example, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned when there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately, or effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation, neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; disorientation to time and place, memory loss for names of close relatives, own occupation, or own name. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the U.S. Court of Appeals for Veterans Claims (Court) held that use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Accordingly, the evidence considered in determining the level of impairment under section 4.130 is not restricted to the symptoms provided in the diagnostic code. Rather, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. More recently, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit explained that in the context of a 70 percent rating, section 4.130 “requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. at 118. The Federal Circuit indicated that “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.” Id. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107 (b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). The Veteran seeks an initial rating in excess of 50 percent for service-connected PTSD. She contends that the rating currently assigned does not reflect the severity of the disability. Applying the facts in this case to the criteria set forth above, the Board finds that an initial rating of 70 percent, but no higher, prior to March 17, 2015 is warranted for the Veteran’s PTSD. In this case, the evidence of record demonstrates that prior to March 17, 2015, the Veteran’s PTSD was manifested by symptoms that more nearly approximate the occupational and social impairment required for an initial 70 percent rating, but no higher. For example, an August 2011 VA examination report indicates that the Veteran exhibited suicidal ideation. She reported suicidal ideation with no plan or intent for several years after the military sexual trauma, but denied any current suicidal thoughts. The Veteran had no friends and was unable to work at her current military job. The examiner concluded that the Veteran had occupational and social impairment with reduced reliability and productivity. A December 2013 private psychological evaluation indicates that the Veteran goes very few places without her husband because she has so much anxiety. The Veteran reported that her husband goes with her so that she can be sure that she’s in a “safe environment”. For example, her husband takes her to class and sits outside with their daughter in the car until class is over. The Veteran exhibited irritability or outbursts of anger, and recurrent episodes of anxiety. The Veteran reported that it was hard for her to relate to other people. The examiner noted that she was socially withdrawn, and relatively mild stressors may be sufficient to precipitate a major crisis. The examiner further noted that the Veteran may have limited social skills, with particular difficulty interpreting the normal nuances of interpersonal behavior that provide the meaning to personal relationships. The Board acknowledges the opinion of the August 2011 VA examiner, who concluded that the Veteran exhibited occupational and social impairment with reduced reliability and productivity. However, the question of which criteria the Veteran’s psychiatric symptoms and impairment most nearly approximate is a legal and not a medical one. 38 C.F.R. § 3.100(a) (delegating the Secretary’s authority “to make findings and decisions... as to the entitlement of claimants to benefits” to, inter alia, VA “adjudicative personnel”); 38 C.F.R. § 4.2 (“It is the responsibility of the rating specialist to interpret reports of examination... so that the current rating may accurately reflect the elements of disability present.”); VA Adjudication Procedures Manual, M21-1, Part III, Subpart. iv, Chapter 3, Section A.7.i (updated Oct. 28, 2015) (“Do not request a medical authority to make conclusions of law, which is a responsibility inherent to the rating activity”). The above evidence including the competent and credible lay statements from the Veteran, and the medical records, reflects that the evidence is at least evenly balanced as to whether the Veteran’s PTSD symptoms and impairment more nearly approximate the occupational and social impairment with deficiencies in most areas, required for a 70 percent rating. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a 70 percent rating PTSD is warranted. The evidence of record indicates that the Veteran’s symptoms and overall level impairment do not more nearly approximate total occupational and social impairment required for an initial 100 percent rating. The December 2013 private psychological evaluation indicates that the Veteran has had two marriages and had been with her current husband for three years. They had a two-year old daughter, and the Veteran was currently pregnant. The examiner noted that they had a loving, supporting relationship and were best friends, but they had an issue with intimacy which they were addressing in relationship counseling. The Veteran also reported that she has a number of supportive relationships that may serve as some buffer against the effects of stress. Moreover, the Veteran had not exhibited symptoms such as gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting herself or others; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. As such, an initial disability rating of 70 percent, but not higher, is warranted. 38 C.F.R. 4.130, DC 9411. For the reasons above, an initial 70 percent rating prior to March 17, 2015 for PTSD is warranted. As the preponderance of the evidence is against any higher rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. 5107 (b); 38 C.F.R. 4.3. 4. Headaches The Veteran seeks service connection for headaches. She contends that such disability is due to her military service. The Veteran’s service treatment records show a diagnosis of headache in May 2009. During an August 2011 VA examination performed prior to separation, the Veteran reported that she initially started having headaches while on active duty in 2008. She denied having headaches or having to take medication for headaches during her current pregnancy. The examiner noted a headache of unknown etiology, resolved and no functional limitations. Post-service treatment records include a December 2013 private psychological evaluation which indicates that the Veteran experiences migraine headaches weekly, lasting two or more days. A March 2014 VA clinical record show an assessment of migraines. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. A July 2013 Addendum Compensation Service Bulletin indicates that migraine headaches should be recognized as an organic disease of the nervous system. In addition, VA’s Adjudication Manual, which is not binding on the Board, DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) (“The M21-1 Manual is binding on neither the agency nor tribunals”), but provides useful guidance in this case as to what diseases VA considers to be chronic, indicates that migraine headaches are an organic disease of the nervous system. VA Adjudication Manual, M21-1, III.iv.4.N.1.d (July 5, 2018). Given the diagnosis of headaches in service and of migraine headaches shortly after service, service connection for migraine headaches is warranted. Groves v. Peake, 524 F.3d 1306, 1309-1310 (2008) (medical nexus evidence demonstrating an etiological link is not necessary to prove service connection when evidence shows that a veteran had a chronic disease in service and still has the same chronic disease). REASONS FOR REMAND 1. Lumbar Spine The Veteran seeks entitlement to service connection for a lumbar disability. She contends that such disability is due to her military service. The Veteran’s service treatment records show that she reported cramping and pain in her left lower back and buttock in August 2008. An assessment of back lumbar strain was noted. In June 2011, the Veteran complained of back pain mainly in the mid-section to the left lower thoracic area. Thoracic tenderness with curvature of the spine was noted. At the August 2011 VA examination, the Veteran denied any back pain. The Veteran was pregnant, therefore, did not undergo a lumbar spine x-ray. The examiner’s impression was lumbar strain, status post motor vehicle accident in 1996, resolved, with no functional limitations. In a March 2015 VA clinical record, the Veteran reported back pain on and off for years, but that the pain had intensified in 2015. A diagnosis of low back pain was noted. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for lumbar disability because a new VA examination is necessary to provide findings as to the functional impairment caused by the low back pain and to determine whether it resulted from service. The Federal Circuit recently held that pain can constitute disability if it results in impairment. Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018) (Fed. Cir. 2018). Therefore, a remand is necessary in order to afford the Veteran a VA examination so as to determine the nature and etiology of her claimed lumbar disorder. 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of her lumbar spine disability. The Veteran’s VA claims files and copy of the remand must be made available to the examiner for review in conjunction with the examination. The examiner should opine as to whether it is at least as likely as not (at least a 50 percent probability) that a lumbar spine disability had its onset in service or is otherwise related to service. The examiner must provide a complete rationale for any opinion set forth. In addressing this matter, the examiner should address the pertinent evidence in the service treatment records, post service medical records and examinations, as well as the lay evidence provided by the Veteran. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Walker, Associate Counsel