Citation Nr: 19114444 Decision Date: 02/28/19 Archive Date: 02/27/19 DOCKET NO. 17-33 788 DATE: February 28, 2019 ORDER Entitlement to service connection for residuals of a hysterectomy is granted. REMANDED Entitlement to service connection for a left ankle disability, to include as secondary to service-connected right ankle strain, is remanded. Entitlement to an initial evaluation in excess of 10 percent for right knee patellofemoral syndrome is remanded. Entitlement to an initial evaluation in excess of 10 percent for left knee patellofemoral syndrome is remanded. Entitlement to an initial evaluation in excess of 10 percent for lumbar strain is remanded. Entitlement to an evaluation in excess of 50 percent major depressive disorder is remanded. Entitlement to an evaluation in excess of 30 percent for migraines is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, her hysterectomy, and current residuals thereof, are at least as likely as not related to her active service. CONCLUSION OF LAW The criteria for service connection for residuals of a hysterectomy are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1992 to April 2002. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2015 (right knee, left knee, lumbar strain, left ankle, and hysterectomy) and November 2016 (major depressive disorder and migraines) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In a statement received from the Veteran in November 2018, the Veteran indicated that she was submitting additional medical records. In December 2018, the Board notified the Veteran that no medical records were attached to her November 2018 statement. However, subsequently, private medical records and VA treatment records, received in November 2018 were, in fact, associated with the record. The Veteran has not waived review of this additional evidence by the Agency of Original Jurisdiction (AOJ). See 38 C.F.R. § 1304 (c). In this regard, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests consideration by the AOJ. Here, although the Veteran’s substantive appeal was filed after February 2, 2013, the Board interprets such exception as applying only to evidence submitted by the Veteran, and while the record reflects the additional evidence was submitted by the Veteran; however, the VA treatment records are considered to have been developed by VA. Nonetheless as the claim for residuals of hysterectomy is granted and as the remaining claims are remanded for additional development, there is no prejudice to the Veteran in this regard. As a final initial matter, a request for a total disability rating due to individual employability resulting from service-connected disability (TDIU), whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when entitlement to a TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability. Id. at 454. In this case, the evidence of record reflects the Veteran is employed as a section chief at a soldier support center. Moreover, the Veteran has not asserted that she was unemployable due to her service-connected disabilities at issue in this appeal. Therefore, the issue of entitlement to a TDIU is not raised in this case. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection on a direct incurrence basis requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for residuals of hysterectomy The Veteran contends the symptoms of uterine fibroids, such as heavy menstrual bleeding, began during her active service and this underlying disability was the condition which led to her post service hysterectomy. In a July 2015 statement, she stated, in part, that the claimed condition was a hysterectomy secondary to fibroids. She further stated that when she entered military service it was documented that she had long periods and severe menstrual cramps and that during her active service she had abnormal pap smears, and tried several procedures for her excessively long and painful menstrual bleeding. Further, in a September 2015 statement, the Veteran reported her initial claim was not secondary to breast fibroids but to uterine fibroids which she had surgically removed through a hysterectomy surgery. She stated had numerous female problems on active duty, to include excessive menstrual bleeding and ovarian cysts. In her May 2017 substantive appeal, the Veteran stated the initial claim was mistitled, as she was advised by a VA employee, to claim a hysterectomy secondary to fibroids when, in fact, the condition that occurred on active duty was endometriosis, pelvic pain, or heavy or irregular bleeding not controlled by treatment. She further stated, in part, that during service, she had several gynecological procedures, to include a uterine biopsy and cryosurgery to remove abnormal cells after having persistent pain and bleeding issues. She stated was diagnosed with dysplasia and had heavier than normal menstrual bleeding during her active service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran has a current disability that is related to her active service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). As an initial matter, the Veteran’s May 1992 examination, conducted in conjunction with her enlistment into active service, did not note any defects or diagnoses with respect to a gynecological issue, and thus, the presumption of soundness applies, although the Board recognizes her May 1992 report of medical history documented menstrual cramps. See McKinney v. McDonald, 28 Vet. App. 15, 22-23 (2016). However, there is not clear and unmistakable evidence to rebut the presumption of soundness. Turning to the first element of service connection, the existence of a present disability, March 2015 and January 2017 gynecological conditions disability benefits questionnaires endorsed a diagnosis of status post hysterectomy. These findings are consistent with a January 2009 private medical which documented the Veteran had a total vaginal hysterectomy for symptomatic fibroid of the uterus. Thus, the question becomes whether disability, best characterized as residuals of a hysterectomy, is related to service. On this question there is evidence that weighs in favor of and against the claim. The evidence against the claim includes March 2015 and a January 2017 opinions. The March 2015 examiner addressed the claim as secondary to breast fibroids which is not relevant to analysis herein. However, the January 2017 examiner found the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The January 2017 examiner noted that the Veteran’s January 2009 medical records showed the Veteran had a total hysterectomy for symptomatic fibroid of the uterus. The January 2017 VA examiner explained that fibroids were benign growths of the uterus that could cause associated symptoms of abdominal pain and heavy bleeding, and depending on the size of the growths or the symptoms associated treatment, it may include surgery to remove the growths or a hysterectomy. Thus, the January 2017 VA examiner opined it was less likely that the Veteran’s hysterectomy was incurred in or caused by the abnormal pap smear during service. The evidence in favor of the claim includes the Veteran’s statements, discussed above, which she reported the symptoms of her uterine fibroids, such as heavy menstrual bleeding, began during her active service and that fibroids was the condition which led to her post service hysterectomy. The Veteran is competent to testify as to observable symptoms such as heavy menstrual bleeding, because these symptoms are capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds the Veteran’s statements regarding the onset of her symptoms pertaining to her uterine fibroids to be credible and they are accorded significant evidentiary weight. Further, the record reflects the Veteran’s hysterectomy was as a result of her uterine fibroids and related heavy menstrual bleeding. Specifically, a November 2008 private medical record documented the Veteran was there to discuss fibroid and cyst, she reported heavy menstrual bleed and was interested in a hysterectomy. A January 2009 private medical record documented the Veteran had a total vaginal hysterectomy for symptomatic fibroid of the uterus and had complaints of having menorrhalgia. Moreover, as discussed above, the January 2017 VA examiner explained that fibroids were benign growths of the uterus that could cause associated symptoms of abdominal pain and heavy bleeding and depending on the size of the growths or the symptoms associated treatment, it may include surgery to remove the growths or a hysterectomy. The January 2017 opinion tends to weigh against the claim; however, the examiner did not adequately address the Veteran’s in-service complaints other than the abnormal pap smear. Specifically, April 1993 and July 1993 service treatment records documented the Veteran reported pain with periods and a September 1993 service treatment record documented a complaint of long midcycle bleeding. Further, in July 1998, September 2000, and January 2001 service treatment records, the Veteran reported, in part, bleeding between her periods. Additionally, a January 2002, report of medical history, conducted in conjunction with the Veteran’s separation from service, in part, noted cysts on ovaries. Thus, the Veteran’s credible statements, combined with her service treatment records, are sufficient to outweigh the opinion of the January 2017 examiner. At the least, this evidence raises a reasonable doubt as to whether the Veteran’s residuals of a hysterectomy are etiologically related her active service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for residuals of a hysterectomy is warranted. See 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 a left ankle disability, to include as secondary to service-connected right ankle strain is remanded. As to a left ankle disability, a January 2017 ankle conditions disability benefits questionnaire did not endorse a diagnosis because there was no pathology to render a diagnosis, and thus, did not provide opinions on a direct incurrence or on a secondary basis. However, a March 2015 ankle conditions disability benefits questionnaire documented abnormal range of motion for dorsiflexion and plantar flexion of the left ankle and endorsed a diagnosis of left ankle strain. Additionally, an August 2015 private medical record, noted in part, as a reason for the appointment, bilateral ankle pain, and a January 2016 VA treatment record documented, in part, left ankle pain. Thus, an addendum opinion is necessary to reconcile this evidence and to provide an addendum opinion on a direct incurrence and secondary basis if warranted. 2. Entitlement to an initial evaluation in excess of 10 percent for right knee patellofemoral syndrome is remanded. While the record contains a contemporaneous January 2017 knee and lower leg conditions disability benefits questionnaire regarding the Veteran’s right knee patellofemoral syndrome, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Specifically, the January 2017 examiner was unable to say without mere speculation as to if pain, weakness, fatigability, or incoordination significantly limit functional ability with flare ups. As the examiner did not indicate that the speculation was due to lack of knowledge within the medical community, the Board finds another examination is warranted. 3. Entitlement to an initial evaluation in excess of 10 percent for left knee patellofemoral syndrome is remanded. While the record contains a contemporaneous January 2017 knee and lower leg conditions disability benefits questionnaire regarding the Veteran’s left knee patellofemoral syndrome, the examination does not comply with the requirements in Sharp. Specifically, the January 2017 examiner was unable to say without mere speculation as to if pain, weakness, fatigability, or incoordination significantly limit functional ability with flare ups. As the examiner did not indicate that the speculation was due to lack of knowledge within the medical community, the Board finds another examination is warranted. 4. Entitlement to an initial evaluation in excess of 10 percent for lumbar strain is remanded. While the record contains a contemporaneous January 2017 back conditions disability benefits questionnaire regarding the Veteran’s lumbar strain, the examination does not comply with the requirements in Sharp. Specifically, the January 2017 examiner was unable to say without mere speculation as to if pain, weakness, fatigability, or incoordination significantly limit functional ability with flare ups. As the examiner did not indicate that the speculation was due to lack of knowledge within the medical community, the Board finds another examination is warranted. 5. Entitlement to an evaluation in excess of 50 percent major depressive disorder is remanded. As discussed above, in a statement received by VA in November 2018, the Veteran reported she was submitting medical records, which documented that the disabilities at issue had worsened. In this regard, these records, which are dated since the most recent September 2016 mental disorders disability benefits questionnaire, include a September 2018 VA treatment record which documented the Veteran, in part, reported increased stress and anxiety over the past few weeks due to the hurricane and helping take care of her mother. Thus, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of major depressive disorder.   6. Entitlement to an evaluation in excess of 30 percent migraines is remanded. As discussed above, a statement received by VA in November 2018, the Veteran reported she was submitting medical records, documented that the disabilities at issue had worsened. In this regard, these records, which are dated since the most recent September 2016 headaches disability benefits questionnaire, include a September 2018 VA treatment record, which documented the Veteran, in part, reported that lately the migraines increased to five to six a month, and an October 2018 private medical record, which noted one reason for the appointment was migraines were getting worse. Thus, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of migraines. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s claim for a left ankle disability. (a.) The examiner should reconcile all left ankle diagnoses of record identified currently, proximate to, or during the pendency of the claim, to include the March 2015 examiner’s diagnosis of left ankle strain, August 2015 and January 2016 medical records which documented left ankle pain, and the January 2017 examiner’s finding of no pathology to render a diagnosis. The examiner should provide an explanation for any discrepancy as to why any diagnoses were provided if the Veteran is found not to have such conditions (for example whether the condition resolved or the diagnosis was made erroneously). (b.) If a diagnosis of the left ankle is endorsed, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including consideration of an April 2000 service treatment record which documented a grade II left ankle sprain. (c.) If a diagnosis of the left ankle is endorsed, the examiner must opine whether it is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected left knee patellofemoral syndrome, right knee patellofemoral syndrome, and lumbar strain. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups for each disability. To the extent possible, the examiner should identify any symptoms and functional impairments due to each disability alone and discuss the effect of each disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected major depressive disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to major depressive disorder alone and discuss the effect of the Veteran’s major depressive disorder on any occupational functioning and activities of daily living. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected migraines. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to migraines alone and discuss the effect of the Veteran’s migraines on any occupational functioning and activities of daily living. (Continued on the next page)   5. After undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran with a supplemental statement of the case and afford her an opportunity to respond before the record is returned to the Board for further review. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Espinoza, Counsel