Citation Nr: 18160024 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 16-54 352 DATE: December 20, 2018 ORDER Service connection for headaches is denied. REMANDED The issue of service connection for chronic fatigue syndrome (CFS) is remanded. The issue of service connection for hypertension is remanded. The issue of service connection for ulcers is remanded. The issue of service connection for pulmonary embolism (claimed as blood clots) is remanded. The issue of service connection for an acquired psychiatric disorder, to include insomnia, anxiety, and posttraumatic stress disorder (PTSD), is remanded. The issue of service connection for uterine cysts is remanded. The issue of service connection for a hysterectomy is remanded. The issue of service connection for endometriosis (claimed as abnormal female exams) is remanded. The issue of service connection for pes planus is remanded. The issue of service connection for sinusitis/rhinitis is remanded. FINDING OF FACT A headache disorder was not incurred in or aggravated by or during active service. CONCLUSION OF LAW The criteria for service connection for headaches have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1988 to February 1993. Duty to Notify and Assist All necessary assistance to obtain evidence has been provided. As to the headache claim decided, there is no probative evidence suggesting the claimed conditions are related to service. Rather, only the Veteran’s general conclusory statement that her claimed disabilities are related to service is of record, which is insufficient to entitle a veteran to a medical examination under 38 U.S.C. § 5103A (d) (2) (B). Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (observing that “[s]ince all veterans could make such a statement, this theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran’s disability case”). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). “To establish a right to compensation for a present disability, 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’ - the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Additionally, pursuant to 38 U.S.C. § 1117, “a Persian Gulf Veteran with a qualifying chronic disability,” that manifests to a degree of 10 percent or more before December 31, 2021, may be entitled to compensation. 38 U.S.C. § 1117 (a) (1); 38 C.F.R. § 3.317 (a) (1). The Veteran contends that her assignment in Diego Garcia qualifies as service in the Southwest Asia theater of operations. However, Diego Garcia is located in the Indian Ocean, not the Arabian Sea, and therefore her service does not qualify for service connection based on these provisions. See 38 C.F.R. § 3.317 (e) (2). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s 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 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for migraine headaches Private treatment records indicate the Veteran has received treatment for migraine headaches since April 2005. The evidence does not suggest that the Veteran’s migraine headache disorder is related to the treatment of any of the Veteran’s other claimed medical conditions. Service treatment records (STRs) do not indicate complaints, diagnoses, or treatments for headaches during service. The Veteran denied frequent or severe headaches on her February 1993 separation report of medical history. Her clinical separation examination was normal. The preponderance of the evidence is against finding service connection for headaches. There is no probative medical evidence that indicates the Veteran demonstrated the onset of her current migraine headache disorder in service. Since the Veteran’s current migraine headache disorder was not incurred in service, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for endometriosis is remanded. The Veteran contends that her endometriosis, claimed as abnormal female exams, had its onset during service. The May 2014 examiner noted several complications of endometriosis but noted he could not find a diagnosis of endometriosis in the record. Private treatment records indicate the Veteran was diagnosed with endometriosis in April 2005 and the Veteran’s diagnosis prior to and after her December 2007 hysterectomy referenced endometriosis. An addendum opinion is needed to fully and fairly evaluate the Veteran’s claim. 2. Entitlement to service connection for pulmonary embolism (claimed as blood clots), ovarian cysts, and hysterectomy are remanded. The Veteran experienced a blood clot a few months after her hysterectomy and was diagnosed with the condition in 2008. The Veteran’s final diagnosis after her hysterectomy included uterine cysts. She also contends that her hysterectomy was primarily due to her endometriosis. Since the Board must remand the Veteran’s claim for service connection for endometriosis, the Board must also remand the claims for service connection for pulmonary embolism, ovarian cysts, and hysterectomy because they are inextricably intertwined with the issue of service connection for endometriosis. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). 3. Entitlement to service connection for an acquired psychiatric disorder, to include insomnia, anxiety, and PTSD, is remanded. The Veteran contends she was sexually assaulted by a servicemember during service and has submitted a lay statement from her then-roommate that the Veteran told her of the assault after it happened. The lay statement is presumed credible for purposes of evaluating a claim of PTSD based on military sexual assault. In addition, the Veteran contends she demonstrated the onset of insomnia and anxiety during service or, alternatively, that these conditions are secondary to her sexual assault. The Veteran must be afforded PTSD and mental disorders examinations to fully and fairly evaluate her claims. 4. Entitlement to service connection for ulcers, hypertension and chronic fatigue syndrome are remanded. The Veteran contends her ulcers, hypertension, and chronic fatigue syndrome (CFS) disabilities are directly related to service or, alternatively, secondary to her claim for an acquired psychiatric disability, to include PTSD. Since the Board must remand the Veteran’s claim for service connection for an acquired psychiatric disability, the Board must also remand the Veteran’s claims for service connection for ulcers, hypertension, and CFS because they are inextricably intertwined with the issue of service connection for an acquired psychiatric disability. See Harris v. Derwinski, supra; see also Tyrues v. Shinseki, supra. 5. Entitlement to service connection for pes planus and sinusitis/rhinitis are remanded. The Veteran has filed a timely notice of disagreement (NOD) for claims of entitlement to service connection for pes planus and sinusitis/rhinitis, which were denied in June 2017. No statement of the case has been issued, and as the claims are now in appellate status, they must be remanded so that such a document can be issued for each claim and the Veteran afforded the opportunity to perfect her appeals. See Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. Request the Veteran provide any service treatment records she possesses or identify and secure any relevant private medical records that are not in the claims file. If the Veteran identifies private records, following the securing of the appropriate waivers, make all appropriate attempts to locate such records and to associate them with the claims file. If the Veteran has no further evidence to submit, or, if after exhaustive efforts have been made, no records can be identified, so annotate the record. 2. Obtain any outstanding VA medical records and associate them with the claims file. 3. Return the claims file to the May 2014 VA examiner and request he re-review the claims file and respond to the inquiries below. If the examiner is not available, arrange for another appropriate VA examiner to provide an addendum medical opinion to assist in determining the relationship between the Veteran’s many in-service gynecological complaints and her endometriosis diagnosis. All appropriate tests, studies and consultations should be accomplished, including a new medical examination if necessary, and all clinical findings should be reported in detail in the narrative portion of the examination report. A rationale should be given for all opinions and conclusions rendered. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner should provide the following opinions: a) Was the Veteran’s endometriosis incurred in service or caused by an in-service injury, event or illness? b) If so, was the Veteran’s hysterectomy, ovarian cysts, and/or post-hysterectomy pulmonary embolism proximately due to or aggravated (e.g. worsened, and if so, to what degree) by the Veteran’s endometriosis disability? c) If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and by the Veteran’s statements as to the nature, severity, and frequency of her observable symptoms over time. The examiner must review the entire record in conjunction with rendering the requested opinions. IN ADDITION TO ANY RECORDS THAT ARE GENERATED BECAUSE OF THIS REMAND, the VA examiner’s attention is drawn to the following: * The May 1988 entrance report of medical history indicated the Veteran denied treatment for a female disorder or a change in menstrual pattern. Her clinical pelvic and vaginal examination was normal. See “STR,” received February 16, 1993, 57 pages. * The Veteran was assessed with vaginitis, yeast infections, painful menses, and possible urinary tract infections (UTIs) throughout service. She was diagnosed with gonorrhea in November 1990 and was also exposed to chlamydia. She terminated an unwanted pregnancy in February 1990. Her April 1991 gynecological examination was normal. She was assessed with dysmenorrhea in December 1991. She had a negative reaction to the birth control pill Tri-Levlen in March 1992. See “STR – Medical,” received June 5, 1997, 69 pages. * The February 1993 report of medical history at separation indicates she denied treatment for a female disorder and a change in menstrual pattern. She was not given a pelvic examination at separation. See “STR – Medical,” received June 5, 1997, 88 pages. * April 2005 private treatment records indicate the Veteran was assessed with premenstrual syndrome, menorrhagia, and endometriosis. See “Medical Treatment Record – Non-Government Facility,” received March 6, 2014, page 21 of 28. * December 2007 hospital invoices indicate the Veteran’s admitting and discharge diagnoses include endometriosis, ovarian cyst, hematoma complications, and the surgical removal of her uterus and both ovaries. In May 2008, she was hospitalized for a pulmonary embolism. See “Medical Treatment Record – Non-Government Facility,” received November 12, 2003, pages 1, 7 of 63. * May 2014 VA medical examination, when the examiner noted several signs, symptoms, or complications of endometriosis, but that he found no evidence of an endometriosis diagnosis in the record. See “C&P Exam,” received May 30, 2014. A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinions cannot be made without resorting to speculation. The examiner should schedule new examinations only if necessary to provide adequate opinions. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THE EXAMINATION/OPINION SUFFICIENT. 4. Schedule the Veteran for an appropriate VA examination, consistent with VA rating protocols, to determine the nature and etiology of all current acquired psychiatric diagnoses. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultations should be accomplished and all clinical findings should be reported in detail. An explanation should be given for all opinions and conclusions rendered. THE EXAMINER IS ADVISED THAT AS TO MILITARY SEXUAL ASSAULT TRAUMA, THE LACK OF SPECIFIC MENTION OF THE ASSAULT IN THE VETERAN’S SERVICE TREATMENT OR PERSONNEL RECORDS IS NOT DETERMINATIVE, and that evidence from sources other than the Veteran’s service records may corroborate the Veteran’s account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(5). Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner should provide the following opinions: a) Were any of the Veteran’s current psychiatric diagnoses incurred in service or caused by an in-service injury, event or illness? b) If so, are any of the Veteran’s current diagnoses of ulcers, hypertension, and/or chronic fatigue syndrome (CFS) proximately due to or aggravated (e.g. worsened, and if so, to what degree) by the Veteran’s psychiatric disabilities? c) If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner must review the entire record in conjunction with rendering the requested opinions. IN ADDITION TO ANY RECORDS THAT ARE GENERATED BECAUSE OF THIS REMAND, the VA examiner’s attention is drawn to the following: * The May 1988 entrance report of medical history indicated the Veteran denied frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort. Her clinical psychiatric examination was normal. See “STR – Medical,” received June 5, 1997, pages 61-63 of 88. * The Veteran stated she was raped by a roommate’s boyfriend in 1991. See “VA 21-0781 Statement in Support of Claim for PTSD,” received July 14, 2014. See also “VA 21-0781a Statement in Support of Claim for PTSD Secondary to Sexual Assault,” received July 14, 2014. See also “VA 21-0781 Statement in Support of Claim for PTSD,” received September 24, 2014. The Veteran’s then-roommate Z.M. also submitted a statement that the Veteran told her of the rape soon after it happened. See “ Correspondence,” received September 2, 2015. * In March 1992, the Veteran complained of fatigue, nervousness, anxiety and bloating. She reported that after discontinuing the Tri-Levlen birth control pill, all her symptoms stopped except for the anxiety. See “STR – Medical,” received June 5, 1997, pages 1-11 of 69. * The February 1993 separation report of medical history indicated the Veteran denied frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort. Her clinical psychiatric examination was normal. See “STR – Medical,” received June 5, 1997, pages 60, 63 of 88. * Private treatment records indicate the Veteran was assessed with insomnia and generalized anxiety disorder in January 2005, depression and insomnia in September 2006, seasonal affective disorder in October 2007, major depression, chronic fatigue, anxiety, stress, and morbid obesity in August 2009, depression and fatigue in December 2009, severe fatigue in January 2010, chronic fatigue in September 2011, and generalized anxiety disorder in December 2011. See “Medical Treatment Record – Non-Government Facility,” received November 14, 2002, 71 pages. * Additional private treatment records show the Veteran was assessed with insomnia and chronic fatigue syndrome in May 2008. See “Medical Treatment Record – Non-Government Facility,” received November 12, 2013, page 3 of 63. * Additional private treatment records indicate the Veteran was assessed with insomnia, mood disorder, and panic disorder in June 2009. See “Medical Treatment Record – Non-Government Facility,” received March 6, 2014, page 14 of 28. * January 2008 private treatment records indicate the Veteran was assessed with hypertension and prescribed medication. See “Medical Treatment Record – Non-Government Facility,” received November 14, 2012, page 59 of 71. * May 2014 VA medical examination, when the Veteran reported she underwent an EGD after discharge and was diagnosed with an ulcer. The examiner noted gastritis symptoms and treatment, but that given the lack of documentation of the EGD conducted after separation, he opined it was difficult to ascertain whether the disease occurred during service. See “C&P Exam,” received May 30, 2014, pages 9-10 of 12. A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinions cannot be made without resorting to speculation. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THE EXAMINATION/OPINION SUFFICIENT. 5. Following the review and any additional development deemed necessary, to include additional examinations to evaluate secondary claims, re-adjudicate the claims. Should the claims not be granted in its entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claims to the Board for adjudication. 6. Issue a statement of the case with respect to the issues of entitlement to service connection for pes planus and sinusitis/rhinitis disabilities. Allow the Veteran the appropriate amount of time to submit a substantive appeal for each claim, and should the appeal(s) be perfected, return the claim(s) to the Board for adjudication. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Anwar, Associate Counsel