Citation Nr: 18148018 Decision Date: 11/07/18 Archive Date: 11/06/18 DOCKET NO. 16-20 845 DATE: November 7, 2018 ORDER Entitlement to service connection for hypertension is granted. Entitlement to service connection for traumatic brain injury (TBI) is denied. REMANDED Entitlement to service connection for complications and chronic pain from placement of transvaginal mesh implant is remanded. Entitlement to service connection for a back disorder, claimed as damage to lower back L1-L3 disk protrusion is remanded. Entitlement to an initial rating in excess of 20 percent for a left shoulder disorder classified as rotator cuff tendonitis is remanded. Entitlement to an initial rating in excess of 20 percent for a right shoulder disorder classified as rotator cuff tendonitis status post labral tear and slap is remanded. FINDINGS OF FACT 1. The Veteran’s hypertension is found to have begun during active service. 2. The preponderance of the evidence is against a finding that a TBI began in active service or is the result of any in-service incident. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have been met. 38 U.S.C. §§1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for traumatic brain injury (TBI) have not been met. 38 U.S.C. §§1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1975 to December 1981 and had additional periods of active service including Reserve service from February 20, 2001 to May 18, 2001; March 3, 2002 to April 12, 2002; July 6, 2002 to July 25, 2002; March 30, 2003 to April 25, 2003; June 23, 2003 to October 16, 2003; October 19, 2003 to November 21, 2003; February 2, 2004 to March 20, 2004; June 21, 2004 to July 23, 2004; October 18, 2004 to November 19, 2004; January 17, 2006 to March 1, 2006; April 1, 2006 to May 17, 2006; June 20, 2006 to September 1, 2006; January 21, 2007 to April 28, 2007; August 20, 2007 to September 29, 2007; January 14, 2008 to September 30, 2008 and from January 4, 2009 to September 30, 2009. This matter comes before the Board from a March 2015 rating decision that granted service connection for left and right shoulder disabilities and assigned initial 10 percent ratings per shoulder. That decision also denied service connection for a lower back disability; residuals of a traumatic brain injury and residual complications and chronic pain from transvaginal mesh implantation surgery. This matter also comes before the Board from a June 2015 rating denying service connection for hypertension, claimed as secondary to service connected residuals of appendectomy and gallbladder surgeries. During the pendency of this appeal the RO in a March 2018 decision granted increased ratings to 20 for both the left and right shoulders effective from initial entitlement of January 27, 2014; this is less than a grant in full, and the Veteran has not withdrawn this claim, hence this matter remains on appeal. Given the denial of service connection for TBI but with STRs showing complaints of dizziness, headaches and visual difficulties in March 2003 and April 2008 without evidence of TBI or other head injury, the Board finds an inferred claim exists for service connection for neurological manifestations of headaches and dizziness not related to TBI. This matter is referred to the RO for further consideration. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Active service includes any period of active duty for training (ACDUTRA) during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training (IDT) during which the veteran was disabled from an injury incurred in the line of duty. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c). Inactive duty training includes duty prescribed for the Reserves. 38 U.S.C. § 101 (23)(A). Reserve service includes the National Guard of the United States. 38 U.S.C. § 101 (26), (27). Duty, other than full-time duty, performed by a member of the National Guard of any State, is considered to be inactive duty training. 38 C.F.R. § 3.6 (d)(4). 1. Hypertension The Veteran contends that service connection is warranted for hypertension. She alleges that it is secondary to service connected residuals of gallbladder and appendix surgery. The Board concludes that the Veteran has a current diagnosis of hypertension that as likely as not began during a period of active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).] Service treatment records (STRs) show no diagnosis of hypertension during her first period of active duty from December 1975 to December 1981. Her May 1975 entrance examination was negative for findings or a history of hypertension. However, as explained below, her hypertension is found to have had its onset during a later period of active service. On May 3, 2006 the Veteran was seen for a blood pressure check with concerns about increasing blood pressure and a history of elevated blood pressure over the last several months. Her blood pressure reading was 150/98. She was diagnosed with systemic hypertension and was prescribed medication to treat it, Atenolol (Tenformin-25). The Board notes that this diagnosis with prescription of medication to treat it was made during a period of active duty from April 1, 2006 to May 17, 2006. Subsequent records show ongoing diagnosis of hypertension with treatment for this disorder with prescription medication. This includes records from active duty showing blood pressure checks in February 2007 after her blood pressure was elevated at the dentist, with readings of 150/96 and 143/102. Additionally, there are service records from March 2007 showing blood pressure medications listed and records in February 2009 and June 2009 noting hypertension in his medical history. An October 2009 Stratcom pre-retirement report of medical history noted that the Veteran was taking blood pressure medications. Post service records show continued findings of hypertension including a February 2013 record noting the Veteran had hypertension controlled with Atenolol and HCTZ. In 2016 her hypertension was included in records such as the reports of medical history in January 2016 and April 2016. In May 2016 she was diagnosed with hypertension which was currently controlled with multiple medications and her blood pressure was elevated in the last month with increased stress in her life. The Board therefore finds that the Veteran has hypertension, and that competent and probative evidence indicates that it as likely as not began on or around the time of a period of active service in 2006 and continued thereafter. With this in mind, entitlement to service connection for hypertension is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Traumatic brain injury (TBI) The Veteran contends in her May 2015 notice of disagreement (NOD) that she sustained a TBI as a result of falls when she slipped on ice and hit her head in service on two occasions. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Service treatment records (STRs) show no reported history or diagnosis of any sort of head injury during her first period of active duty from December 1975 to December 1981. Her May 1975 entrance examination was negative for findings or a history of head injury. She continued to have no history or findings of a head trauma in subsequent STRs. In fact she denied having head trauma, including a report of medical history for reenlistment examination in March 1985 and no history of head injury was shown in problem lists including in March 2009 prior to her most recent discharge from service. An October 2009 Stratcom pre-retirement report of medical history noted the Veteran to deny having any injuries for which she did not seek medical care. The STRs do disclose that in March 2003 she was seen for complaints of dizziness after she smelled something at her desk five days ago, and she reported being unable to concentrate, having nausea, visual changes such as blurriness and a constant dull headache accompanied by light sensitivity. She was assessed with dizziness and a consult for prescription was made. . In April 2008 the Veteran had an MRI of the brain ordered for a clinical history of eye flutter and double vision for 8 to 9 months. There was no history of trauma or headache. The findings from the MRI were of an essentially normal brain. See 46 pg. STRS received May 13, 2016 at pg. 21, 37, 40. Post service records make no mention of head injury/concussion prior to 2015. In August 2015 she was seen for a history of multiple concussions said to have happened recently. Further details were not provided and she was noted to be a difficult historian. A history of concussion and memory issues was noted in September 2015 and concussion history was also noted in December 2015. None of the records gave any indication that the concussions took place during a period of service. In April 2016 her medical history was noted to include that of 5 concussions, again with no indication as to when they took place. In November 2017 and again in March 2018 the Veteran was diagnosed with memory deficits secondary to concussions, again with no history regarding etiology of the concussions given. The Board concludes that, while the Veteran has a history of concussion and diagnosis of concussion related memory issues shown, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). As noted above, the probative medical evidence does not reflect a head injury including concussion/TBI treated or diagnosed in service. Rather, the medical records show a history no sooner than 2015, several years after her most recent period of service. While the Veteran is competent to report that she sustained a concussion in service, her reports are largely not credible due to internal inconsistency and inconsistency with other evidence in the record, as the records discussed above indicated that she denied history of head injury in service, including on problem lists and only gave a recent history of concussions in records from 2015. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Consequently, the preponderance of the evidence weighs against findings that an in-service injury resulting in TBI occurred. REASONS FOR REMAND 1. Entitlement to service connection for complications and chronic pain from placement of transvaginal mesh implant is remanded. Service connection for this issue has been denied because VA did not find a link between this diagnosed genitourinary condition and service. The October 2014 VA examiner noted that the Veteran had chronic urinary tract infections (UTIs) prior to placement of the vaginal mesh and these UTIs were not caused or aggravated by the placement of mesh or transvaginal surgery. A review of the pertinent evidence and the Veteran’s contentions discloses a rather lengthy and complex genitourinary history both prior to and after the surgical procedure for which she is claiming service connection for residuals including chronic pain. This history dates back to as early as October 1978 with treatment for vaginitis and continues with gynecological issues treated throughout her multiple periods of service, with a problem list from February 2009 a few months prior to discharge listing multiple genitourinary issues including urinary symptoms, endometriosis, menometrorrhagia, menorrhagia, among others. See 37 pg. STRS 1970s received August 14, 2015 at pg. 27, 30; see also 82 pg. 2009 records received 5/13/16 at pg. 20. This history does not appear to have been fully addressed by the October 2014 VA examiner. As for the claimed surgery for which she is claiming residuals, the records show that she had UTIs as early as August 2003, when she was treated for a UTI and yeast infection. See 59 pg. STRs entered 5/13/16 at pg. 5. In June 2009 she underwent surgery to treat a long term (20 year history) of stress incontinence with the records showing the procedure of trans obturator taping mid urethra sling (bladder sling) to treat this condition. The records also show that after this surgery, she suffered complications of urinary retention and inability to void that required emergency treatment via catheterization. See 66 pg. 2009 STRS received 5/13/16 pg. 12, 36, 44, 47; see also 145 pg. STRs 2008-2009 received 1/25/10 at pg. 98; see also 65 pg. STRS June-July 2009 UTI received 5/13/16 at pg. 33, 42, 48, 52, 62. She contends that since this surgery she now has chronic pain. While the Board acknowledges that pain alone is not considered a current disability under Sanchez- Benitez, it is mindful of the recent holding in Saunders. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (providing that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted); see also Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018) (holding that pain may be considered a disability where the pain reaches the level of functional impairment of earning capacity). In view of the forgoing the Board finds that the Veteran should be provided another VA examination that fully addresses the medical and lay history of this disorder, to include consideration of whether alleged surgical residuals of chronic pain condition meets the level of a disability. Additionally, in light of the many periods of service, the examiner should address whether any genitourinary disorders, including the urinary disorders that led to the June 2009 surgery were incurred in or aggravated by any period of active service. Additionally, pertinent VA records not already associated with the claims file (since March 2018) should be obtained. 2. Entitlement to service connection for a back disorder, claimed as damage to lower back L1-L3 disk protrusion is remanded. Further development of this issue is necessary. Service connection for this issue has been denied based on the lack of clinical diagnosis, and as the medical evidence supported a conclusion that a persistent disability was not present in service. To date a VA examination to address this matter has not been obtained. The STRS are noted to show treatment for low back pain in June 1979 diagnosed as lumbar muscle spasm and diagnosed as sciatica and probable L4 compression treated with traction in July 1979. . An incidental finding of degenerative changes in the spine and sacral destructive bone lesion was shown in an abdominal CT scan in April 2008 in service. See 185 pg. STRS entered 1/15/10 at pg. 113. Post service records from 2015 show treatment for back pain with a long term history said to date 40 years back to service after she sneezed in service. MRI findings from September 2015 show multiple degenerative changes in the lumbar spine. See 57 pg. Medical Treatment records entered 6/17/16 at pg. 3, 10, 12, 21, 29, 35, 37. In view of the forgoing, the Board finds that the Veteran should be provided a VA examination that fully addresses the etiology of this claimed disorder based on the medical and lay history of this disorder. Additionally, pertinent VA records not already associated with the claims file (since March 2018) should be obtained. 3. Entitlement to an initial rating in excess of 20 percent for a left shoulder disorder classified as rotator cuff tendonitis is remanded. Further development of this issue is necessary. The most recent VA examination of her left shoulder disorder is dated in October 2014 (with addendum in March 2015) over 4 years ago; after review of the new treatment records, with treatment that includes the left shoulder noted in June 2016, a current VA examination of this disorder should be obtained. Additionally, pertinent VA records not already associated with the claims file (since March 2018) should be obtained. 4. Entitlement to an initial rating in excess of 20 percent for a right shoulder disorder classified as rotator cuff tendonitis status post labral tear and slap is remanded. Further development of this issue is necessary. The most recent VA examination of her right shoulder disorder is dated in October 2014 (with addendum in March 2015) over 4 years ago; after review of the new treatment records, with a history of surgery in July 2016 since the last VA examination, a current VA examination of this disorder should be obtained. Additionally, pertinent VA records not already associated with the claims file (since March 2018) should be obtained. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from March 2018 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected right shoulder and left shoulder disorders. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected headache disorder alone and discuss the effect of this disorder on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any disabilities of the genitourinary system, to include any functionally disabling chronic pain disorder of the genitourinary system or other complications from placement of transvaginal mesh implant. The examiner must opine whether any disability/disabilities of the genitourinary system was incurred in or aggravated by any period of active duty (see introduction for active duty dates) or is/are at least as likely as not related to an in-service injury, event, or disease, including the in-service transvaginal mesh surgery. If a chronic pain disorder resulting from this surgery is diagnosed, the examiner should address whether this results in functional impairment. Any opinion offered should include a comprehensive rationale based on sound medical principles and relevant facts of this case. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any disabilities of the lumbar spine. The examiner must opine whether any disability/disabilities of the lumbar spine was incurred in or aggravated by any period of active duty (see introduction for active duty dates) or is/are at least as likely as not related to an in-service injury, event, or disease. Otherwise, the examiner should opine whether any arthritis of the lumbar spine was manifested within the first post service year. Any opinion offered should include a comprehensive rationale based on sound medical principles and relevant facts of this case. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Eckart, Counsel