Citation Nr: 19141011
Decision Date: 05/28/19	Archive Date: 05/28/19

DOCKET NO. 11-08 999
DATE:	May 28, 2019

ORDER

Entitlement to service connection for Chiari I malformation is denied.

Entitlement to service connection for sinusitis is denied.

Entitlement to service connection for allergies to latex, metal, certain foods, and numerous drugs is denied.

Entitlement to service connection for vaginitis is denied.

Entitlement to service connection for acne is denied.

Entitlement to service connection for a chronic skin disorder manifested by dry skin is denied.

Entitlement to service connection for pharyngitis, also claimed as gag reflex, chronic sore throat, and difficulty swallowing, is denied.

Entitlement to service connection for an abdominal disorder, manifested by left lower quadrant pain, is denied.

Entitlement to service connection for a chronic foot disability, claimed as swollen feet, is denied.

Entitlement to service connection for allergic rhinitis is denied.

Entitlement to service connection for chronic bronchitis, also claimed as dyspnea and upper respiratory infections, is denied.

Entitlement to service connection for irritable bowel syndrome (IBS), claimed as colon problems, gastroenteritis, and chronic constipation, is denied.

Entitlement to service connection for bronchial asthma is denied.

Entitlement to service connection for migraine headaches with photosensitivity is granted.

Entitlement to service connection for neurocognitive disorder with short-term memory loss is denied.

Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression with mood swings, is denied.

Entitlement to service connection for temporomandibular joint (TMJ) syndrome is denied.

Entitlement to service connection for chronic urinary tract infections (UTIs) is denied.

Entitlement to service connection for neurogenic bladder with incontinence is denied.

Entitlement to service connection for gastroesophageal reflux disease (GERD) with dysphagia is denied.

Entitlement to service connection for liver cysts is denied.

Entitlement to service connection for sleep apnea is denied.

Entitlement to service connection for cysts of the breast is denied.

Entitlement to service connection for phlebitis of the pelvis with pain is denied.

Entitlement to service connection for uterine fibroids with dysmenorrhea is denied.

Entitlement to service connection for endometriosis is denied.

Entitlement to service connection for hysterectomy is denied.

Entitlement to service connection for periodontal disease for compensation purposes is denied.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied.

FINDINGS OF FACT

1. The Veteran’s Chiari I malformation is a congenital defect; a preponderance of the evidence is against finding that a disease or injury was superimposed over the Chiari I malformation during service.

2. The preponderance of the evidence is against finding that sinusitis began during active service, was aggravated by service, or is otherwise related to an in-service injury or disease or to a service-connected disability. 

3. The preponderance of the evidence is against finding that allergies to latex, metal, certain foods, and numerous drugs began during active service, were aggravated by service, or are otherwise related to an in-service injury or disease or to a service-connected disability. 

4. The preponderance of the evidence is against finding that vaginitis began during active service, was aggravated by service, or is otherwise related to an in-service injury or disease or to a service-connected disability. 

5. The preponderance of the evidence is against finding that acne began during active service, was aggravated by service, or is otherwise related to an in-service injury or disease or to a service-connected disability. 

6. The preponderance of the evidence is against finding that a chronic skin disorder manifested by dry skin began during active service, was aggravated by service, or is otherwise related to an in-service injury or disease or to a service-connected disability. 

7. The preponderance of the evidence is against finding that pharyngitis, also claimed as gag reflex, chronic sore throat, and difficulty swallowing, began during active service, was aggravated by service, or is otherwise related to an in-service injury or disease or to a service-connected disability. 

8. The preponderance of the evidence is against finding that an abdominal disorder, manifested by left lower quadrant pain, began during active service, was aggravated by service, or is otherwise related to an in-service injury or disease or to a service-connected disability. 

9. The preponderance of the evidence is against finding that a chronic foot disability, claimed as swollen feet, began during active service, was aggravated by service, or is otherwise related to an in-service injury or disease or to a service-connected disability. 

10. The preponderance of the evidence is against finding that allergic rhinitis began during active service, was aggravated by service, or is otherwise related to an in-service injury or disease or to a service-connected disability. 

11. The preponderance of the evidence is against finding that chronic bronchitis began during active service, was aggravated by service, or is otherwise related to an in-service injury or disease or to a service-connected disability. 

12. The preponderance of the evidence is against finding that IBS, claimed as colon problems, gastroenteritis, and chronic constipation, began during active service, was aggravated by service, or is otherwise related to an in-service injury or disease or to a service-connected disability. 

13. The preponderance of the evidence is against finding that bronchial asthma began during active service, was aggravated by service, or is otherwise related to an in-service injury or disease or to a service-connected disability. 

14. The Veteran’s migraine headaches with photosensitivity are secondary to service-connected TBI.

15.  The preponderance of the evidence is against finding that neurocognitive disorder with short-term memory loss (distinct from any symptoms of TBI) began during active service, was aggravated by service, or is otherwise related to an in-service injury or disease or to a service-connected disability. 

16. The preponderance of the evidence is against finding that an acquired psychiatric disability (distinct from any symptoms of TBI) began during active service, was aggravated by service, or is otherwise related to an in-service injury or disease or to a service-connected disability. 

17. The preponderance of the evidence is against finding that TMJ syndrome began during active service, was aggravated by service, or is otherwise related to an in-service injury or disease or to a service-connected disability. 

18. The preponderance of the evidence is against finding that chronic UTIs began during active service, were aggravated by service, or are otherwise related to an in-service injury or disease or to a service-connected disability. 

19. The preponderance of the evidence is against finding that neurogenic bladder with incontinence began during active service, was aggravated by service, or is otherwise related to an in-service injury or disease or to a service-connected disability. 

20. The preponderance of the evidence is against finding that GERD with dysphagia began during active service, was aggravated by service, or is otherwise related to an in-service injury or disease or to a service-connected disability. 

21. The preponderance of the evidence is against finding that liver cysts began during active service, were aggravated by service, or are otherwise related to an in-service injury or disease or to a service-connected disability. 

22. The preponderance of the evidence is against finding that sleep apnea began during active service, was aggravated by service, or is otherwise related to an in-service injury or disease or to a service-connected disability. 

23. The preponderance of the evidence is against finding that cysts of the breast began during active service, were aggravated by service, or are otherwise related to an in-service injury or disease or to a service-connected disability. 

24. The preponderance of the evidence is against finding that phlebitis of the pelvis with pain began during active service, was aggravated by service, or is otherwise related to an in-service injury or disease or to a service-connected disability. 

25. The preponderance of the evidence is against finding that uterine fibroids with dysmenorrhea began during active service, were aggravated by service, or are otherwise related to an in-service injury or disease or to a service-connected disability. 

26. The preponderance of the evidence is against finding that endometriosis began during active service, was aggravated by service, or is otherwise related to an in-service injury or disease or to a service-connected disability. 

27. The preponderance of the evidence is against finding that hysterectomy began during active service, was aggravated by service, or is otherwise related to an in-service injury or disease or to a service-connected disability. 

28. The Veteran’s dental condition did not result in loss of substance of the body of the maxilla or mandible due to trauma or disease such as osteomyelitis rather than as a result of periodontal disease.

29. The Veteran’s service-connected disabilities have not been shown to prevent her from securing and following substantially gainful employment.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a Chiari I malformation are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.303, 4.9.

2.  The criteria for entitlement to service connection for sinusitis have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

3. The criteria for entitlement to service connection for allergies to latex, metal, certain foods, and numerous drugs have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

4. The criteria for entitlement to service connection for vaginitis have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

5. The criteria for entitlement to service connection for acne have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

6. The criteria for entitlement to service connection for a chronic skin disorder manifested by dry skin have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

7. The criteria for entitlement to service connection for pharyngitis, also claimed as gag reflex, chronic sore throat, and difficulty swallowing, have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

8. The criteria for entitlement to service connection for an abdominal disorder, manifested by left lower quadrant pain, have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

9. The criteria for entitlement to service connection for a chronic foot disability, claimed as swollen feet, have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

10. The criteria for entitlement to service connection for allergic rhinitis have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

11. The criteria for entitlement to service connection for chronic bronchitis, also claimed as dyspnea and upper respiratory infections, have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

12. The criteria for entitlement to service connection for IBS, claimed as colon problems, gastroenteritis, and chronic constipation, have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

13. The criteria for entitlement to service connection for bronchial asthma have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

14. The criteria for entitlement to service connection for migraine headaches with photosensitivity have been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

15. The criteria for entitlement to service connection for neurocognitive disorder with short-term memory loss have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

16. The criteria for entitlement to service connection for an acquired psychiatric disability, to include PTSD and depression with mood swings, have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

17. The criteria for entitlement to service connection for TMJ syndrome have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

18. The criteria for entitlement to service connection for chronic UTIs have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

19. The criteria for entitlement to service connection for neurogenic bladder with incontinence have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

20. The criteria for entitlement to service connection for GERD with dysphagia have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

21. The criteria for entitlement to service connection for liver cysts have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

22. The criteria for entitlement to service connection for sleep apnea have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

23. The criteria for entitlement to service connection for cysts of the breast have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

24. The criteria for entitlement to service connection for phlebitis of the pelvis with pain have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

25. The criteria for entitlement to service connection for uterine fibroids with dysmenorrhea have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

26. The criteria for entitlement to service connection for endometriosis have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

27. The criteria for entitlement to service connection for hysterectomy have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

28. The criteria for entitlement to service connection for a dental condition for compensation purposes were not met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.150.

29. The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.25, 4.26.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran enlisted into the Navy reserves on April 30, 2002, and served from May 19, 2002 until discharged from the Navy reserves on December 16, 2004.  She served in basic training from July 11, 2002 to July 25, 2002.  Because the Veteran has been service connected for a disability that arose during this period, (traumatic brain injury), this period of service is considered to be active duty service.  

This matter comes before the Board of Veterans’ Appeals from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

In August 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge.

Service Connection

Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  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, or nexus, between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may also be granted for chronic diseases that are listed under 38 C.F.R. § 3.309(a) if such were shown as chronic in service; manifested to a compensable degree within a presumptive period (usually one year) after separation from service; or were noted in service with continuity of symptomatology since service.  38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a).  However, service connection based on this presumption is only available for periods in which a veteran served at least 90 days of active, continuous service during a period of war or after December 31, 1946.  38 C.F.R. § 3.307(a)(1).  In the case at hand, the Veteran’s qualifying service lasted from July 11, 2002, through July 25, 2002, which is far fewer than 90 consecutive days.  Therefore, presumptive service connection based on chronic disability is not available in this case.  

A disability that is proximately due to, or results from, a service-connected disease or injury shall be considered a part of the original condition.  38 C.F.R. § 3.310(a).  Secondary service connection on the basis of aggravation is permitted.  38 C.F.R. § 3.310(b).  Compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability and not due to the natural progress of the nonservice-connected disease.  Allen v. Brown, 7 Vet. App. 439 (1995).

Active military, naval, or air service includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty.  38 U.S.C. § 101(21-24); 38 C.F.R. § 3.6.  Service connection may thus be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training, or from injury incurred or aggravated while performing inactive duty training.  38 U.S.C. §§ 101, 106, 1110, 1131.  

The advantage of certain evidentiary presumptions that assist veterans in establishing service connection for a disability do not extend to those who claim service connection based only on a period of active duty for training or inactive duty training.  Paulson v. Brown, 7 Vet. App. at 470-71; see also Smith v. Shinseki, 24 Vet. App. 40, 48 note 7.  Therefore, the presumptions of sound condition at entrance (38 U.S.C. §§ 1111, 1132), of aggravation where evidence shows an increase in severity of a pre-existing disease (38 C.F.R. § 3.306), and service incurrence for certain chronic diseases that manifest themselves to a degree of 10 percent or more disabling within a year from the date of separation from service (38 C.F.R. §§ 3.307, 3.309) are not available with respect to periods of active duty for training or inactive duty training.

Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of entry.  38 U.S.C. § 1111; 38 C.F.R. § 3.304(b).  

The burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that a disability both (1) existed prior to service and (2) was not aggravated by service.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).  To satisfy this second prong, the government must show by clear and unmistakable evidence that either (1) there was no increase in disability during service or (2) any increase in disability was “due to the natural progression” of the condition.  Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006).  If VA fails to rebut the presumption of soundness, the claim becomes one for service connection.  If VA rebuts the presumption of soundness, then the claim must be denied.  

Service connection may be granted for congenital or hereditary diseases if initially manifested in or aggravated by service.  See VAOPGCPREC 82-90, VAOPGCPREC 67-90.  A congenital, developmental, familial, or hereditary condition that is progressive in nature (i.e., which can worsen or improve over time) is a “disease process.”  See, e.g., O’Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014).   Even if it is determined during service that a Veteran suffers from a congenital disease, VA cannot simply assume that, because of its congenital nature, a congenital disease must have preexisted service.  Thus, the presumption of soundness still applies to congenital diseases that are not noted at entry.  Quirin v. Shinseki, 22 Vet. App. 390, 396-397 (2009).  Since the presumption of soundness at entrance attaches, VA must show by clear and unmistakable evidence that the congenital disease preexisted service.  Monroe v. Brown, 4 Vet. App. 513, 515 (1993).

Congenital or developmental defects (in contrast with congenital diseases) are not diseases or injuries, and therefore they may not be service-connected.  38 C.F.R. § 3.303(c), 4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996).  However, if a disease or injury is superimposed over the congenital or developmental defect during service, service connection may be warranted for the resultant disability.  VAOPGCPREC 82-90 (July 18, 1990).  The presumption of soundness does not apply to congenital or developmental defects.  Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009).

The Board notes that the Veteran was scheduled for VA examinations in connection with these claims in September 2017, but that she did not report.  38 C.F.R. § 3.655(b) provides, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.  

Entitlement to service connection for Chiari I malformation is denied.

The Veteran has described her contentions with respect to this issue in several written correspondences and at her Board hearing.  In particular, she concisely laid out her specific contentions in a March 2008 personal statement.  She has asserted that she suffered a cerebrovascular incident in service that led to the Chiari I malformation, noting that “the trauma to the brain was asymptomatic and symptomatic but misdiagnosed from the time she first made a medical complaint on 23 July 2002 at 1054 from the NAVHOSP Great Lakes, IL.”  She contends that her Chiari I malformation with cerebral spinal fluid blockage “did begin while on active duty but was not medically confirmed until 04/21/2005.”  

The Veteran has described suffering a traumatic brain injury in service during a diving exercise.  At her August 2016 Board hearing, the Veteran described this incident, noting that, while she was performing a “dead man’s dive,” she was “going from a[n] area of low pressure to high pressure too fast.”  (See Board hearing transcript, page 30.)  She testified that she sought medical treatment because she could not breathe, but was told that she had “sinusitis or upper respiratory infection.”  (See Board hearing transcript, page 31.)  She stated that, after she found out that she had a Chiari malformation with a cerebrospinal fluid flow blockage, a neurosurgeon told her that she could have suffered “decompression as a result of going down to a deep part of the water and coming up quickly.”  (See Board hearing transcript, pages 31-32.)  

She noted in her March 2008 statement that “however, there is medical evidence to support a daily chronic headache, sinus pressure, nonproductive cough, constipation, sore throat, headache, pressure on AD, rash around neck/skin disorders, dental after her active duty training.”  In essence, even though she was not diagnosed with Chiari I malformation until three years after her July 2002 service, the Veteran contends that the July 2002 service treatment records first document the presence of symptoms that are indicators of Chiari I malformation in service.  

The July 23, 2002, service treatment record notes that the Veteran sought treatment for complaints of sinus pressure for 13 days, congestion (resolving) for 13 days, nonproductive cough for 13 days, constipation for 13 days, sore throat for 7 days, post-nasal drip for 5 days, and rash around the neck where the dog tags hang for 13 days.  Following examination, the Veteran was assessed as having sinusitis and skin irritation due to dog tags.  She was treated with medication, including antibiotics (Amoxicillin).  

The July 23 service treatment record does not expressly state that the Veteran sought treatment following a rapid pressure change underwater.  However, a December 2007 Report of Contact verifies that the Veteran would have been performing Damage Control Training when she sought treatment on July 23.  

In the March 2008 statement, the Veteran identified a September 8, 2005, medical note from Dr. W.S. that “opined that the veteran’s medical condition was during her military service.”  She also identified a July 7, 2005, medical note from Dr. J. that “opined that the veteran’[s] medical condition was during her military service.”  Review of the record reveals a July 7, 2005, record that appears to be from Dr. W.S. that notes the Veteran’s complaints of decreased energy and weight gain.  It also notes, in part, that she has a history of migraine headaches and photophobia.  This record does not, however, mention Chiari I malformation and does not otherwise attribute any disability or symptoms of disability to the circumstances surrounding her military service.  Review of the claims file does not reveal a record that corresponds with the described September 8, 2005, record.  

An April 2005 email from Dr. T.C. to the Veteran notes that the Veteran’s MRI scan showed “a questionable ‘chiari’ malformation, which is a congen[i]tal (usually) change in the size of the hole at the base of the brain, allowing the tip of the cerebellum to stick out through this hole.”  

In an August 2017 VA TBI examination report, a VA psychiatrist noted that Chiari malformation is congenital and unrelated to TBI, and that there was no evidence of aggravation.  The Board subsequently sought an opinion from a suitable expert on the issue of the nature and etiology of the Veteran’s Chiari I malformation from the Veterans Health Administration (VHA).  The resulting February 2019 VHA opinion has been associated with the claims file.

Based on review of the record, the author of the February 2019 opinion stated that the Chiari malformation is “a congenital defect that occurs when abnormally shaped cerebellar tonsils … are displaced below the level of the foramen magnum.”  The examiner noted that it “does not appear to be an acquired condition, nor disease.” Rather, “[i]t is a congenital condition caused by a small posterior Cranial fossa.”  

The examiner was next asked whether, if Chiari malformation is considered a congenital defect, is it at least as likely as not that there was a superimposed disease or injury that occurred during service that resulted in additional disability.  The examiner determined that:

[Since] Chiari Malformation Type I is a condition that involves dysfunction due to small posterior intracranial fossa, it is possible that sudden torsional movements, falls, or trauma could cause some mild problems, but in the absence of sudden onset of abnormalities: NYSTAGMUS (no nystagmus as in note 3/31/2005 and eyes movement abnormalities, it [is] less likely than not that any new injuries occurred that caused worsening of her condition due to new lesions. 

The next question that was posed to the author of the VHA opinion asks whether, if it is determined that the Veteran suffered superimposed injury or disease, “what is the superimposed injury or disease?”  The examiner included a detailed description of symptoms that are of a type that have been associated with superimposed injury on Chiari I malformation, and noted which of these symptoms the Veteran has displayed.  It also noted the symptoms that the Veteran has not displayed and that “[t]here is no evidence of Chiari Type I malformation related neurogenic bladder and chronic Urinary tract infection, Constipation, IBS, Latex and Medal allergies.”  However, because the examiner has found that the Veteran’s Chiari I malformation was not subject to a superimposed additional disability on account of the Veteran’s service, this portion of the examiner’s answer is not relevant to the matter at hand.  

The Board finds this opinion to be highly probative, as it was authored by a physician who possesses the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1).  See Cox v. Nicholson, 20 Vet. App. 563 (2007).  It is based on review of the record and explains its findings through citation to pertinent medical principles and the facts of the Veteran’s case.

The Board acknowledges the objection that was made by the Veteran’s accredited representative in the February 2018 Informal Hearing Presentation.  Specifically, it states that the August 2017 VA TBI examination report “says that Chiari Type 1 is always congenital.  However, the NIH says that it can be acquired through various mishaps or injuries.”  It cites pertinent literature to support this proposition and further questions the qualifications of the August 2017 examiner.  

The Board notes that the last of these objections has been remedied by the February 2019 VHA opinion, which was authored by an examiner who is appropriately qualified to produce the requested opinion.  The Board notes that the February 2019 examiner’s expertise and familiarity with the science behind the subject at hand indicate that she is familiar with the literature suggesting that Chiari I malformation may be caused by trauma.  This conclusion is supported by the examiner’s contemplation of the possibility that sudden movements such as those that the Veteran describes as having occurred during her dive could “cause some mild problems.”  However, the examiner ultimately concluded that, “in the absence of sudden onset of abnormalities… it is less likely than not that any new injuries occurred that caused worsening of her condition due to new lesions.” 

The Board also notes that one of the Veteran’s own physicians, Dr. T.C., describes Chiari I malformation as being “a congen[i]tal (usually) change.”   

The Board notes that, ultimately, the Veteran has presented no credible persuasive evidence supporting her contention that her Chiari I malformation had its onset in service or otherwise underwent an increase in severity in service due to an in-service diving incident. While the Veteran contends that the diagnosis of sinusitis at her July 23 medical appointment was, in fact, a misdiagnosis of symptoms associated with her Chiari I malformation, the Board notes that the sinusitis diagnosis is supported by the July 23 record.  Specifically, the Board notes that the July 23 record reflects that the Veteran had described all of her reported symptoms as having been present between 5 and 13 days prior to her seeking treatment, with the vast majority of these symptoms having been present for 13 days.  The Veteran has not suggested that she was experiencing symptoms from a dive for almost two weeks before she sought treatment.  In addition, the Board notes that the Veteran had only been on duty for 12 days prior to her having sought treatment, as her period of duty began on July 11.  Even taking into account that the 13-day duration of most symptoms could have been an approximation, the Veteran has not suggested that the diving incident occurred almost immediately upon her activation for this period of service.

Based on the above, the Board finds that the Veteran’s Chiari I malformation is a congenital defect, and that it is less likely than not that an injury or disease was superimposed over this defect that caused additional disability.  The Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, the claim is not in equipoise.  See 38 U.S.C.  § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Accordingly, the claim must be denied. 

Entitlement to service connection for sinusitis is denied.

The Veteran’s April 17, 2002, Navy Reserve enlistment examination report reflects that her sinuses were clinically normal when she was examined and accepted for enrollment.  Therefore, the presumption of soundness attaches.  38 U.S.C. § 1111 and 38 C.F.R. § 3.304(b).  

As noted above, the burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that a disability both (1) existed prior to service and (2) was not aggravated by service.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).  

With respect to the first element, pre-service medical records reflect that the Veteran was treated for sinusitis on many occasions.  (See private treatment records dated in May 1996, October 1996, January 1997, February 1997, August 1997, September 1997, October 1997, February 2001, and May 2001.)  In particular, one of the August 1997 records reflects that the Veteran had a history of sinusitis occurring approximately five times per year.  In addition, on her April 2002 Navy Reserve enlistment medical history report, the Veteran reported that she has a history of sinusitis that she experiences during certain times of the year.  Based on the Veteran’s pre-service medical records and her own admission of a history of sinusitis on entrance into service, the Board finds that the Veteran’s sinusitis clearly and unmistakably existed prior to service.    

With respect to the second element, the government must show by clear and unmistakable evidence that either (1) there was no increase in disability during service or (2) any increase in disability was “due to the natural progression” of the condition.  Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006).  

In the case at hand, the Veteran was assessed as having sinusitis following a 13-day history of sinus pressure, congestion, non-productive cough, constipation, and rash around the neck where her dog tags hung; a 7-day history of sore throat; and a 5-day history of post-nasal drip, headaches, and pressure on the right ear.  (See July 23, 2002, service treatment record.)  She was treated with antibiotics (Amoxicillin) and other medications (including Deconamine).  

The Veteran testified at her Board hearing that she was continually given an antibiotic for sinusitis while on basic training.  (See Board hearing transcript, page 22.)  She also testified that her sinusitis would flare up every two weeks and that it continued up until she had surgery.  (See Board hearing transcript, page 27.)  The Veteran’s VA medical records reflect that, in November 2011, she underwent a tonsillectomy/septoplasty with turbinate reduction.  

The Board notes that the Veteran only had one bout of sinusitis in her two weeks of active duty service.  As noted above, she had multiple bouts of sinusitis in the years prior to active duty.  In the years immediately following her separation from her period of active duty service, the Veteran’s medical records reflect that she was treated for sinusitis in August 2004 and January 2005.  She was also seen for sinus symptoms prior to and following her November 2011 surgery.

VA scheduled the Veteran for a September 2017 general medical examination to determine whether her sinusitis was clearly and unmistakably not aggravated by service.  The Veteran did not report for this examination.  Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.  38 C.F.R. § 3.655(b).  

The determination as to whether there is clear and unmistakable evidence that a condition was not aggravated by service, however, is ultimately a legal determination to be decided by the fact finder—the Board.  The Board finds that the lay and medical evidence clearly and unmistakably shows that the Veteran’s sinusitis was not aggravated beyond the natural progress during a 14-day period of service. Close review of the reported symptoms and medical evidence shows no discernable difference between the pre-service disability and the disability during service.  To the contrary, an escalation of symptoms is shown many years after service when the Veteran was finally required to undergo surgery in 2011.  Thus, the presumption of soundness is rebutted, and service connection is not warranted. 

In addition to opining that the Veteran’s current sinusitis disability is related to the symptoms she experienced during service, the Veteran’s accredited representative theorized during the Board hearing that the Veteran’s symptoms of sinusitis may be the result of the TBI that she suffered when she was diving during service.  (See Board hearing transcript, page 58.)  The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The Board finds, however, that the questions posed by this claim, specifically linking in-service sinusitis to a current sinusitis disability, are of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess.  The Board notes that the Veteran’s representative does not possess the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1).  See Cox v. Nicholson, 20 Vet. App. 563 (2007).  No competent medical evidence in support of this theory has been presented.

The Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, the claim is not in equipoise.  See 38 U.S.C.  § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Accordingly, the claim must be denied. 

Entitlement to service connection for allergies to latex, metal, certain foods, and numerous drugs is denied.

The Veteran’s service treatment records reflect that she was treated for an allergic reaction to her dog tags on July 23, 2002, after seeking treatment for a rash around her neck where her dog tags hung.  The Board notes that the Veteran has not demonstrated that she suffers from any current residuals of the allergic reaction she suffered during service.  

The Veteran’s service treatment records do not reflect that she suffered any other allergic reactions during service.  Service treatment records reflect that she reported allergies (or at least sensitivity) to latex.  A January 2007 private medical record notes that the Veteran had a suspicion of possible latex sensitivity around age 19 or 20, which is well before her military service.  However, while a latex sensitivity was noted in her service treatment records, she did not demonstrate a latex sensitivity during service.  Likewise, while she reported pineapple and sulfa allergies in service, she did not suffer allergic reactions to pineapple or sulfa drugs during service.  

The Veteran has reported numerous allergies.  In July 2007, she identified a number of drugs to which she is allergic.  However, the Veteran has not presented any competent medical evidence to reflect that any of these allergies originated or manifested during her military service.

In short, in the absence of current residuals to the in-service exposure to metal dog tags, service connection for allergy to metal dog tags must be denied.  In the absence of evidence of in-service latex sensitivity or allergic reactions to latex, certain foods, and numerous drugs, service connection for those allergies must be denied.

The Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, the claim is not in equipoise.  See 38 U.S.C.  § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Accordingly, the claim must be denied. 

Entitlement to service connection for vaginitis is denied.

Entitlement to service connection for acne is denied.

Entitlement to service connection for a chronic skin disorder manifested by dry skin is denied.

Entitlement to service connection for pharyngitis, also claimed as gag reflex, chronic sore throat, and difficulty swallowing, is denied.

Entitlement to service connection for an abdominal disorder, manifested by left lower quadrant pain, is denied.

Entitlement to service connection for a chronic foot disability, claimed as swollen feet, is denied.

The Board notes that the Veteran’s service treatment records reflect that she did not complain of or seek treatment for symptoms associated with any of the above claimed disabilities during service.  Rather, the Veteran testified at her Board hearing that she believes her acne, chronic skin disorder manifested by dry skin, vaginitis, pharyngitis, and swollen feet are disabilities that resulted from allergic reactions to certain drugs, latex, metals, and certain foods.  (See Board hearing transcript, pages 68, 71-72, 76-78, 107.)

She stated that she takes “clindamycin as my second round of antibiotics and I take them on a daily basis and they give me … vaginitis … [i]f I do not take … a[n] active yogurt basically.”  (See, Board hearing transcript, pages 71-72.)  

When discussing her acne claim, she stated that “I don’t know if it’s something about me being allergic to metal or me being allergic to something that’s on there.”  (See Board hearing transcript, page 68.)  

Her representative stated that she wanted to “group in service connection for chronic condition for abdominal pain,” pharyngitis, and swollen feet under the same theory of entitlement.  (See Board hearing transcript, page 78.)

Her representative also noted that they would “like to also group that in with the acne as service connection to a chronic condition to account for dry skin and it’s the same argument.”  (See Board hearing transcript, page 107.)

However, the Veteran and her accredited representative do not possess the necessary medical expertise to link any of these disabilities to substance exposures the Veteran experienced in service, and no competent medical opinion of record has made any such connection.  In addition, she testified during her Board hearing that no doctor has told her that any drugs she was given in response to her in-service allergic reaction led to any current residuals, or that any drugs that she was given during service resulted in an allergic reaction that caused her to develop any additional disability.  (See Board hearing transcript, page 76.)  The Veteran has not met her burden of proof, and thus the evidence of record is insufficient to substantiate the claim for service connection. See Madden v. Gober, 125 F.3d 1477, 1480-81 (Fed. Cir. 1997) (explicitly rejecting the argument that "the Board must accept a veteran's evidence at face value, and reject or discount it only on the basis of rebuttal evidence proffered by the agency" and holding that the Board must determine "the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence").

The Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claims, the claims are not in equipoise.  See 38 U.S.C.  § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Accordingly, the claims must be denied.      

Entitlement to service connection for allergic rhinitis is denied.

Entitlement to service connection for chronic bronchitis, also claimed as dyspnea and upper respiratory infections, is denied.

Entitlement to service connection for IBS, claimed as colon problems, gastroenteritis, and chronic constipation, is denied.

Service treatment records reflect that the Veteran experienced an upper respiratory infection on July 23, 2002.  In relevant part, this treatment record notes the following symptoms: sinus pressure, congestion (resolving), nonproductive cough, and constipation for 13 days; sore throat for 7 days; and post-nasal drip for 5 days.  She was treated with medication, including antibiotics (Amoxicillin). 

At her hearing, the Veteran testified that the July 23, 2002, service treatment record provides in-service evidence of the above disabilities.  (See Board hearing transcript, pages 9-10, and 52-53.)  She contends that the treatment for constipation in service is evidence of her subsequent IBS diagnosis.  (See Board hearing transcript, page 88.)

The Board notes that the Veteran was not diagnosed will allergic rhinitis during service, and that she has not presented an opinion from a medical professional reflecting that her in-service symptoms of sinusitis and an upper respiratory infection were, in fact, symptoms of allergic rhinitis.  

The Board further notes that the Veteran’s in-service upper respiratory infection was not noted to be chronic, and that there is no opinion of record from a competent medical professional that links the in-service upper respiratory infection to a current disability.  

Furthermore, no medical professional has opined that the Veteran’s in-service constipation is linked to IBS.  

In addition, symptoms such as sinus pressure, congestion, nonproductive cough, constipation, sore throat, post-nasal drip, and skin rash are too general to be presumed to be linked to any current disability.  

Even though the Veteran herself contends that there are links between the symptoms that she sought treatment for in service and current disabilities of allergic rhinitis, chronic bronchitis (to include upper respiratory infections), and IBS (to include chronic constipation), the Board must find that the Veteran, as a layperson, does not possess the necessary professional qualifications to offer competent medical evidence on these matters.  Likewise, while the Veteran’s accredited representative theorized during the Board hearing that the Veteran’s symptoms of bronchitis may be the result of the TBI that she suffered when she was diving during service, he has not demonstrated that he possesses the necessary expertise to provide competent medical evidence on this question.  (See Board hearing transcript, page 58.)  The only evidence of record relating the Veteran's claimed disabilities to service are the Veteran and representative’s own general speculative conclusory statements, which do not meet the low threshold of an indication that the claimed disabilities are due to service.  See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues).  Consequently, VA is under no duty to afford the Veteran a VA examination.  38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2018); McLendon, 20 Vet. App. at 83.

In short, the Board finds that the probative evidence weighs against finding a link between the Veteran’s allergic rhinitis, chronic bronchitis (also claimed as dyspnea and upper respiratory infections), and IBS (claimed as colon problems, gastroenteritis, and chronic constipation) to service.

To the extent that the Veteran contends that any of these disabilities occurred secondary to or were aggravated by her Chiari I malformation, the Board notes that service connection for Chiari I malformation has been denied.  Therefore, service connection on a secondary basis must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

The Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claims, the claims are not in equipoise.  See 38 U.S.C.  § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Accordingly, the claims must be denied.  

Entitlement to service connection for bronchial asthma is denied.

Service treatment records do not reflect that the Veteran was diagnosed with bronchial asthma during service.  Even though she sought treatment for chest pain and shortness of breath in July 2002, these symptoms have not been associated with a diagnosis of bronchial asthma.  The Veteran has not identified any evidence in her service treatment records that reflects an in-service diagnosis of bronchial asthma was warranted.  

At the Board hearing, the Veteran’s husband noted that the Veteran was diagnosed with exercise-induced asthma within one month of her return home from basic training.  (See Board hearing transcript, page 65.)  Her accredited representative asserted that the Veteran should be given the benefit of the one-year period for presumptive service connection for chronic disabilities.  The Board notes, however, that bronchial asthma is not on the list of disabilities that are entitled to presumptive service connection.  See 38 C.F.R. § 3.309(a).  The Board further notes that the Veteran did not service a period of at least 90 consecutive days of service; therefore, even if bronchial asthma were considered a chronic disability, the Veteran would not be entitled to service connection on a presumptive basis.  See Grose v. Brown, 4 Vet. App, 144, 148 (1993).

In short, there is no competent medical evidence of record that links the Veteran’s bronchial asthma to her military service.  

The Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, the claim is not in equipoise.  See 38 U.S.C.  § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Accordingly, the claim must be denied.  

Entitlement to service connection for migraine headaches with photosensitivity is granted.

The November 2017 rating decision granted entitlement to service connection for traumatic brain injury.  The 40 percent rating that it assigned contemplated headache symptomatology.  

The August 2017 VA TBI examination report notes that the Veteran has “subjective symptoms or any mental, physical or neurological conditions or residuals attributable to a TBI.”  These residuals included “Headaches, including Migraine headaches.”  The Board notes that “Headaches, including Migraine headaches,” constitutes a distinct diagnosis.  Based on this opinion, the Board finds that entitlement to service connection for migraine headaches with photosensitivity is warranted.

The Board notes that, when the RO granted entitlement to service connection for TBI in a November 2017 rating decision, it declined to separately evaluate the Veteran’s headache disability because she had failed to report for a September 2017 VA examination.  The Board notes that the assignment of a separate disability rating for the Veteran’s headache disability is beyond the scope of this current decision.

Entitlement to service connection for neurocognitive disorder with short-term memory loss is denied.

The November 2017 rating decision granted entitlement to service connection for traumatic brain injury.  The 40 percent rating that it assigned contemplated neurocognitive symptomatology.  

As noted above, the August 2017 VA TBI examination report notes that the Veteran has “subjective symptoms or any mental, physical or neurological conditions or residuals attributable to a TBI.”  These residuals consisted of “Headaches, including Migraine headaches,” and “Memory impairment.”  Unlike with “Headaches, including Migraine headaches,” “Memory impairment” is considered to be a symptom of disability rather than a separate disability itself.

The Veteran has not been diagnosed with a distinct disability (other than the TBI) that manifests in neurocognitive disorder, including memory impairment.   Therefore, entitlement to service connection for a separate neurocognitive disorder other than the TBI is not warranted.  

To the extent that the Veteran is seeking service connection for neurocognitive disorder with short-term memory loss as distinct from her TBI, she did not report for the September 2017 VA examination that would have addressed this question.  Because there is not otherwise sufficient evidence of a link between a neurocognitive disability diagnosis and service, the claim must be denied.

To the extent that the Veteran contends that this disability occurred secondary to or was aggravated by her Chiari I malformation, the Board notes that service connection for Chiari I malformation has been denied.  Therefore, service connection on a secondary basis must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

The Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, the claim is not in equipoise.  See 38 U.S.C.  § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Accordingly, the claim must be denied. 

Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression with mood swings, is denied.

The Veteran contends that she suffers from psychiatric disability that is related to her military service.  She has provided a journal entry that she wrote while on active duty describing incidents of sexual harassment that she experienced.  The Board notes that, while the Veteran has been diagnosed with depression and anxiety, there is no competent medical evidence of a link between such disabilities and service.  

The Veteran does obtain psychiatric treatment for her depression and anxiety.  This evidence does not link the Veteran’s psychiatric disabilities to service.  Rather, as noted in a May 2016 VA medical record, even though the Veteran has described experiencing military sexual trauma, her care provider has assessed her as having “[history of] depression in context of multiple medical problems and psychosocial stressors related to those conditions.”  

To the extent that the Veteran contends that this disability occurred secondary to or was aggravated by her Chiari I malformation, the Board notes that service connection for Chiari I malformation has been denied.  Therefore, service connection on a secondary basis must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

The Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, the claim is not in equipoise.  See 38 U.S.C.  § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Accordingly, the claim must be denied. 

Entitlement to service connection for TMJ syndrome is denied.

The Veteran’s pre-service medical records reflect that she was treated for otalgia with right TMJ in August 1997.  In service, the record of her treatment for sinusitis notes headaches and right ear pain of five days’ duration.  Post-service, the earliest reports of TMJ appear in a July 2007 private medical record.  The Veteran has provided no opinion from a competent medical professional to support a contention that these in-service symptoms are evidence of TMJ.  

The Veteran testified at her Board hearing that she was diagnosed with TMJ by a civilian doctor after she got back from boot camp.  (See Board hearing transcript, pages 100-101.)  She testified that she started having headaches and thought she was having a problem with her tooth, but that the doctor told her it was TMJ.  

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  In the case at hand, none of the above situations credibly exists.  In this case, the Veteran is reporting a medical etiology opinion that purportedly was given to her more than a decade earlier.  Her medical records themselves do not contain the TMJ diagnosis shortly after her separation from service, and they do not attribute any TMJ to the in-service episode of headaches and earache.

As noted above, the Veteran was scheduled for a VA examination to determine the etiology of her TMJ.  However, as noted above, she did not report for the September 2017 VA examination.  When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.  38 C.F.R. § 3.655(b).  In the case at hand, there is no competent medical evidence of record that establishes a relationship between the Veteran’s TMJ and her service.  The Veteran does not possess the necessary medical expertise to link a subsequent TMJ diagnosis to her military service.

The Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, the claim is not in equipoise.  See 38 U.S.C.  § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Accordingly, the claim must be denied.    

Entitlement to service connection for chronic urinary tract infections (UTIs) is denied.

Entitlement to service connection for neurogenic bladder with incontinence is denied.

The Veteran does not contend, and the record does not reflect, that she experienced chronic UTIs or neurogenic bladder with incontinence during service.  Rather, she testified at her Board hearing that her doctors have linked these disabilities to her Chiari malformation.  (See Board hearing transcript, pages 107-108.)  

As discussed above, however, service connection for Chiari I malformation has been denied.  Therefore, service connection on a secondary basis must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

The Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claims, the claims are not in equipoise.  See 38 U.S.C.  § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Accordingly, the claims must be denied. 

Entitlement to service connection for GERD with dysphagia is denied.

The Veteran contends that her GERD with dysphagia was diagnosed by her private doctor shortly following her separation from active duty service.  (See Board hearing transcript, page 85.)  She testified that she noticed her GERD symptoms while on active duty, but that she did not complain of them until she was at her Reserve station.  The Veteran’s service treatment records reflect that she did not report GERD or dysphagia while on active duty.  When asked at her Board hearing whether she ever “complain[ed] of symptoms associated with GERD while on basic training,” the Veteran responded that “No I just didn’t eat.”  (See Board hearing transcript, page 85.)  

The Veteran’s time at her Reserve station constitutes inactive duty training.  For periods of inactive duty training, service connection is only available for injuries that were incurred in the line of duty.  GERD is a disease, not an injury.  Therefore, service connection for GERD cannot be granted based on her Reserve service.

The Veteran’s medical records do not reflect that she was diagnosed with GERD with dysphagia shortly following basic training.  In addition, her post-service medical records do not link her GERD with dysphagia to her military service.  The Veteran herself does not possess the necessary medical expertise to link her GERD with her two weeks of active duty training.  As noted above, the Veteran did not report for a September 2017 VA examination, and the claim must be decided based on the evidence of record.  38 C.F.R. § 3.655.  In this case, there is no competent medical opinion that links the Veteran’s GERD to her military service.

The Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, the claim is not in equipoise.  See 38 U.S.C.  § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Accordingly, the claim must be denied. 

Entitlement to service connection for liver cysts is denied.

The Veteran’s medical records reflect that she was found to have tenderness on the edge of her liver in 1996.  (See February 1996, March 1996, and April 1996 private medical records.)  No disability diagnosis was given at the time.  Her service treatment records reflect she never complained of or sought treatment for symptoms associated with a liver cyst.  Following her separation from service, an October 2007 medical record notes that the Veteran had a small lesion on the dome of her liver.  

At her hearing, the Veteran stated she was never informed by her doctors that she probably had cysts on her liver while on active duty, but rather that they have told her that the cysts probably formed when she gained weight.  (See Board hearing transcript, page 80.)  When asked why she believed that her liver cysts are related to service, the Veteran stated that “I had never had anyone say that I had liver cysts before and all of a sudden it’s like okay you have liver cysts….  No one at the VA []ever explains everything fully to me.”  (See Board hearing transcript, page 81.)  The Veteran’s accredited representative requested that VA obtain an opinion to discern the size and the growth rate of the cyst, presumably to determine whether the cyst first appeared during her two weeks of active duty service.  The Board finds that there is no basis to obtain an opinion based on such speculation.  

The Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, the claim is not in equipoise.  See 38 U.S.C.  § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Accordingly, the claim must be denied.  

Entitlement to service connection for sleep apnea is denied.

The Veteran’s claim of entitlement to service connection for sleep apnea appears to be based on the idea that the Veteran was thinner and did not snore prior to her active duty service.  (See Board hearing transcript, pages 48-50.)  The Veteran’s husband testified that the Veteran was “a silent sleeper” before service but that, “when she came back home [from boot camp],” she was “[c]hopping down logs.”  (See Board hearing transcript, pages 49-50.)  

The Board notes that the Veteran’s service treatment records reflect no complaints of symptoms that were later associated with sleep apnea.  In addition, the Veteran did not complain of symptoms that were later associated with sleep apnea for many years following her separation from service.  

The Board notes that the Veteran underwent sleep studies in December 2014 and September 2015 that were negative for sleep apnea.  However, a September 2015 VA medical record notes “Sleep study neg for Sleep Apnea however seen sleep clinic and DX made based on hx chronic insomnia with excessive daytime sleepiness, and additional supportive hx patient benefitted so profoundly from using her husband’s CPAP for a period of 3 months.”  

In the absence of proof of a present disability, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service.  Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).  As such, service connection for sleep apnea is not warranted.

In any event, regardless of whether the Veteran does, in fact, have sleep apnea, no association between any current sleep apnea diagnosis and her military service has been made.  

As noted above, the Veteran did not report for a September 2017 VA examination, and the claim must be decided based on the evidence of record.  38 C.F.R. § 3.655.  In this case, there is no competent medical opinion that links any current sleep apnea to her military service.

The Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, the claim is not in equipoise.  See 38 U.S.C.  § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Accordingly, the claim must be denied. 

Entitlement to service connection for cysts of the breast is denied.

Prior to service, a January 1997 medical record reflects that the Veteran underwent an echography for fibrocystic changes of the breast, with a finding of a suspected small cyst on the left breast.  

The Veteran’s service treatment records are completely absent any concerns of a cyst in either breast.  At her August 2016 Board hearing, the Veteran noted that she “had a cyst on the left breast and my cysts were highly fibrocystic with fibrocystic nodules on both breasts.”  (See Board hearing transcript, page 108.)  She also noted that she had hydradenitis suppurativa (HS) underneath her armpits and had a surgical procedure to clean them out two weeks before the hearing.

The Veteran testified that no doctor has ever told her the cause of the cysts in her breasts.  (See Board hearing transcript, page 110.)  Her husband thought she had had the cysts for at least a year, but the Veteran thought it had been longer.  (See Board hearing transcript, pages 110-111.)  

The Veteran has presented no competent medical evidence of a link between her breast cysts and her service.  As a layperson, she is not competent to link these cysts to her two weeks of active duty service.  

As noted above, the Veteran did not report for a September 2017 VA examination, and the claim must be decided based on the evidence of record.  38 C.F.R. § 3.655.  In this case, there is no competent medical opinion that links any current cysts of her breasts to her military service.

The Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, the claim is not in equipoise.  See 38 U.S.C.  § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Accordingly, the claim must be denied. 

Entitlement to service connection for phlebitis of the pelvis with pain is denied.

Entitlement to service connection for uterine fibroids with dysmenorrhea is denied.

Entitlement to service connection for endometriosis is denied.

Entitlement to service connection for hysterectomy is denied.

The Veteran has stated that she had a hysterectomy because of her phlebitis of the pelvis with pain, uterine fibroids with dysmenorrhea, and endometriosis.

The Veteran contends that she experienced pelvic pain and heavy vaginal bleeding during basic training, but that she thought it was just cramping.  She reported that she had not experienced these symptoms prior to service.  (See Board hearing transcript, page 94.)  The Board notes, however, that prior to active duty service, a January 2002 private medical record notes fibroids, menorrhagia, dysmenorrhea, and premenstrual dysphoric disorder, while a February 2002 record notes pelvis pain and dysmenorrhea.  

The Veteran reported that the in-service bleeding was heavy enough to cause her to stain her panties and that “the CO took my panties and paraded them around … the room for everybody to see.”  (See Board hearing transcript, page 94.)  She subsequently linked this pain and bleeding to endometriosis and uterine fibroids.  She testified that she was diagnosed with endometriosis within a month of her return from basic training.  (See Board hearing transcript, pages 95-96.)

The Board notes that the Veteran’s service treatment records and a journal entry she wrote in basic training do not corroborate her reports of severe in-service bleeding and cramping.  

In her July 19, 2002, journal entry, she noted that her Commanding Officer “just sexually harassed the entire female unit and he had a smile on his face!  …  He took a pair of bloody panties and put them on a stick.  He paraded the bloody panties around the room like a trophy!”  The Board finds it significant that the Veteran did not describe the panties as belonging to her, and it therefore cannot accept this journal entry as evidence of her own in-service heavy bleeding.

The Board further notes that the Veteran did not report heavy vaginal bleeding when she sought medical treatment four days later for sinusitis and an allergic reaction to dog tags.  The Board considers it highly likely that, if the Veteran had experienced unprecedentedly heavy menstruation during active duty, she would have reported it at the same time that she reported having symptoms such as sinus pressure, congestion (resolving), nonproductive cough, constipation, sore throat, post-nasal drip, and rash around the neck where the dog tags hang.  

The Board therefore finds that the Veteran has not established that she had heavy menstrual bleeding during basic training, and she has not otherwise established that her phlebitis of the pelvis with pain, uterine fibroids with dysmenorrhea, endometriosis, and/or hysterectomy are related to service.

Post-service treatment records reflect that the Veteran underwent a CT scan in February 2005 following complaints of abdominal pain in the lower left quadrant, with a finding of probable cysts.  The Veteran was found to have fibroids and endometriosis in September 2005.  She underwent a total abdominal hysterectomy in December 2005.  The pre-operative diagnosis lists dysmenorrhea, pelvic pain, and leiomyomatous uteri (uterine fibroids).  It also notes stage 2 endometriosis throughout the pelvis.  

The Veteran has not presented competent, credible medical evidence of a link between the Veteran’s active duty service and her phlebitis of the pelvis with pain, uterine fibroids with dysmenorrhea, endometriosis, and/or hysterectomy.  As noted above, the Veteran was scheduled for a September 2017 VA examination.  However, she did not report for this examination, and there is otherwise no competent medical evidence of such a relationship.  38 C.F.R. § 3.655.

The Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claims, the claims are not in equipoise.  See 38 U.S.C.  § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Accordingly, the claims must be denied. 

Entitlement to service connection for periodontal disease for compensation purposes is denied.

Dental disorders are treated differently than other medical disorders in the VA benefits system.  See 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161.  Under current VA regulations, compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150.  These conditions include various problems of the maxilla, mandible, or temporomandibular articulation, loss of whole or part of the ramus, loss of the condyloid process or coronoid process, loss of the hard palate, or loss of teeth due to loss of substance of the body of the maxilla or mandible due to trauma or disease such as osteomyelitis rather than as a result of periodontal disease.  See 38 C.F.R. § 4.150.  Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not considered disabling conditions, and may be considered service connected solely for establishing eligibility for VA outpatient dental treatment.  See 38 C.F.R. § 3.381(a).

The evidence does not reflect that the Veteran suffered any of the types of conditions that are described above as eligible for compensation, as there was no indication that she lost any teeth due to loss of substance of the body of the maxilla or mandible due to trauma or disease such as osteomyelitis rather than as a result of periodontal disease.  Therefore, entitlement to service connection for a dental condition for compensation purposes is not warranted.

TDIU

Entitlement to a TDIU is denied.

A total disability rating based upon individual unemployability due to service-connected disabilities is assigned when service-connected disabilities result in such impairment of mind or body that the average person would be precluded from following a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15.  

In evaluating a veteran’s employability, consideration may be given to his or her level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.  

If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be at least 70 percent.  38 C.F.R. § 4.16(a).

Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration.  The Court recently “interpret[ed] the phrase ‘unable to secure and follow a substantially gainful occupation’ in § 4.16(b) to have two components: one economic and one noneconomic.”  Ray v. Wilkie, 17-0781 (Vet. App. March 14, 2019).  The economic component refers to “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person.”  With respect to the noneconomic component:

In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to

•	the veteran’s history, education, skill, and training;

•	whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue.  Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and

•	whether the veteran has the mental ability to perform the activities required by the occupation at issue.  Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity.  

Ray v. Wilkie, 17-0781 (Vet. App. March 14, 2019).  

With respect to sedentary work, in particular, the Court has stated the following:

[W]here a veteran’s ability to perform sedentary work is a basis for the Board’s decision, the meaning of sedentary work must be determined from the particulars of the medical opinion in which it is used.  That is, the Board must explain this meaning—to the extent that it is not apparent from the Board’s overall discussion of the opinion—as well as how the concept of sedentary work factors into the veteran’s overall disability picture and vocational history, and the veteran’s ability to secure or follow a substantially gainful occupation.

Withers v. Wilkie, 30 Vet. App. 139, 147 (2018).

In the case at hand, the Veteran is in receipt of a 40 percent rating for a TBI under 38 C.F.R. § 4.124a, Diagnostic Code 8045.  

On her July 2008 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran stated that she is prevented from securing or following any substantially gainful occupation due to Chiari malformation with cerebral spinal fluid blockage, neurogenic bladder, and depression.  As noted above, none of these disabilities has been service connected.  With respect to education, the Veteran reported that she had been a doctoral student.  Prior to her retirement, she was working in education with small children, and before that she had been a school administrator.  She included the following statement:

I currently commute 76 miles one way to work.  I fall asleep at the wheel of the car; see blind spots and take seizure medication.  I do not sleep more than 4 (four) hours each night.  I have daily headaches in which I cannot hold my head up.  I cannot control my urine and bowels without medication and pads.  I cannot remember/recall information.  Light hurts my eyes.  

July 2008 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability.

In a December 2008 “Employee’s Statement of Disability [In Connection with Requests for Reasonable Accommodation for Health Reasons],” the Veteran described the many impairments for which she was requesting accommodation.  She described experiencing difficulties with attendance; fatigue / tiredness / sleepiness; irritability; problems driving; requiring frequent bathroom breaks; lights hurting her eyes; headaches from smells; blurry vision when walking, driving, and holding her head up; lifting items; lifting children; problems with computer terminals; anxiety; and depression.  She provided a detailed description of how her disabilities cause or aggravate these difficulties.  The Board notes that the Veteran has attributed these difficulties to Chiari malformation with cerebral spinal fluid blockage at the base of her brain; depression/anxiety; migraines; neurogenic bladder; irritable bowel syndrome; problems swallowing; and problems with feeling in her feet.

She noted in her March 2011 substantive appeal that “the Office of Personnel Management found that I was disabled for my position as a Teacher, due to Chiari I Malformation.”  

The February 2015 Social Security Administration decision found that the Veteran “has been disabled under sections 216(i) and 223(d) of the Social Security Act since June 11, 2009.”  It found that the Veteran “has the following severe impairment: degenerative disc disease, Chiari I malformation, migraine headaches, irritable bowel syndrome (“IBS”), depression, anxiety, and obesity.”  Of these impairments, only the Veteran’s migraine headaches are service connected.  However, the SSA decision’s subsequent discussion of the nature and severity of the Veteran’s impairments is based on the combined effect of these disabilities.  The decision itself does not isolate the occupational impairment that was due to the Veteran’s headaches.

A June 2016 statement from the Veteran’s former supervisor describes occupational impairments that the Veteran suffered while working.  However, these impairments were due to psychiatric symptoms, including stress, fear, loneliness, and night traumas.  She was functioning on little sleep due to these symptoms.

The August 2017 VA TBI examination report describes the Veteran’s TBI impairment as follows: 

With respect to “Memory, attention, concentration, executive functioning,” the examiner noted that there was “[o]bjective evidence on testing of mild impairment of memory, attention, concentration, or executive functioning resulting in mild functional impairment.  

With respect to “Judgment,” the examiner noted that there was “Moderately impaired judgment: For complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, although has little difficulty with simple decisions.”  

With respect to “Social interaction,” the examiner noted that “[s]ocial interaction is routinely appropriate.”

With respect to “Orientation,” the examiner noted that the Veteran is “[o]ccasionally disoriented to two of the four aspects (person, time, place, situation) of orientation or often disoriented to one aspect of orientation.”  

With respect to “Motor activity (with intact motor and sensory system),” the examiner noted “[m]otor activity normal.”  

With respect to “Visual spatial orientation,” the examiner noted that the Veteran is “Mildly impaired: Occasionally gets lost in unfamiliar surroundings, has difficulty reading maps or following directions.  Is able to use assistive devices such as GPS (global positioning system).” 

With respect to “Subjective symptoms,” the examiner noted that the Veteran reported “[t]hree or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family or other close relationships.  Examples of findings that might be seen at this level of impairment are intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light.”

With respect to “Neurobehavioral effects,” the examiner noted that examples include “irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability.  Any of these effects may range from slight to severe, although verbal and physical aggression are likely to have a more serious impact on workplace interaction and social interaction than some of the other effects.”  The examiner noted that the Veteran has “[n]o neurobehavioral effects.”  

With respect to “Communication,” the examiner noted that the Veteran has “[a]bility to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language.”  

With respect to “Consciousness,” the examiner noted that the Veteran’s consciousness was “[n]ormal.”  

With respect to “Residuals,” the examiner noted that the Veteran does have “subjective symptoms or any mental, physical or neurological conditions or residuals attributable to a TBI.”  These residuals consisted of “Headaches, including Migraine headaches,” and “Memory impairment.”

With respect to “Functional impact,” the examiner noted that the Veteran does have “residual conditions attributable to a traumatic brain injury [that] impact … her ability to work.”  Specifically, the examiner notes that the Veteran “reports that she has problems remembering the tasks and she feels irritable.  She has been receiving disability from the DOD due to Migraines, memory impairment, and depression.”  

The record reflects that the Veteran retired due to her Chiari I Malformation, not due to effects from her TBI and headaches.  In any event, the impairment that was described above, in particular in the August 2017 VA examination report, reflects that the Veteran’s TBI and headaches do not render her unable to secure and follow a substantially gainful occupation.  The Veteran’s memory was only mildly impaired; her judgment was moderately impaired; her social interaction was routinely appropriate; she was occasionally disoriented to two aspects of orientation and often disoriented to one aspect of orientation; motor activity was normal; neurobehavioral effects were normal; visual spatial orientation was mildly impaired; communication was not impaired; and consciousness was normal.  She had subjective symptoms that mildly interfered with work, instrumental activities of daily living, or work, family or other close relationships.  With respect to functional impact on her ability to work, the Veteran reported having problems remembering the tasks and feeling irritable.  

The Board finds that the above symptoms did not render her incapable of performing her duties as an educator, as her service-connected disabilities merely interfered with, but did not preclude, some aspects of her job performance.  While the Veteran did have to miss work due to frequent doctor’s appointments, these appointments were mostly related to nonservice-connected disabilities.  When the Veteran was actually at work, her irritability, memory problems, and photophobia mildly, or at the most moderately, impaired her ability to work, but did not prevent her from working. None of the physical impairments (such as difficulty lifting, sleepiness, and frequent urination) that the Veteran has described has been attributed to her service-connected disabilities. The Veteran has not specifically articulated how her service connected disabilities alone have rendered her unemployable, and therefore has not met her burden to substantiate her claim.  See 38 U.S.C. § 5107(a). In light of the above, the Board finds that referral of the issue of entitlement to a TDIU on an extraschedular basis is not warranted. 

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The Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, the claim is not in equipoise.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Accordingly, the claim must be denied. 

 

TANYA SMITH

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	Elizabeth Jalley, Counsel