Citation Nr: 20006242 Decision Date: 01/24/20 Archive Date: 01/24/20 DOCKET NO. 15-37 128 DATE: January 24, 2020 ORDER The claim of entitlement to service connection for hypertension (HTN) is granted. The claim of entitlement to service connection for a reproductive disorder, claimed as menorrhagia, is granted. REMANDED The claim of entitlement to service connection for conjunctivitis is remanded. FINDINGS OF FACT 1. The Veteran has a current diagnosis of HTN that manifested during and is directly related to her active duty service. 2. The Veteran has a current diagnosis of a reproductive disorder that manifested during and is directly related to her active duty service. CONCLUSIONS OF LAW 1. The criteria to establish the claim of entitlement to service connection for HTN have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 2. The criteria to establish the claim of entitlement to service connection for a reproductive disorder have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Air Force from August 1990 to July 2010. The Board acknowledges the lengthy service of the Veteran. These matters are before the Board of Veteran’s Appeals (Board) from the July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, that denied service connection for conjunctivitis, HTN, and a reproductive disorder. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge at the RO in Houston, Texas, in November 2019. A written transcript of that hearing has been prepared and associated with the evidence of record. The Board notes that the Veteran’s appeal also contained service connection claims for lumbago and a heart murmur, which were granted service connection in an April 2019 rating decision. Those awards constitute a full grant of the disability sought, and those appeals have been resolved. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning “downstream” issues, such as the compensation level assigned for the disability and the effective date). The Board also finds that the rating decision of July 2011 is not a final prior decision and is still pending pursuant to 38 C.F.R. § 3.156(b) (2018), as the Veteran filed new evidence of her claims within one year of the July 2011 rating decision. Therefore, the Board does not need to address whether new and material evidence has been submitted and the Veteran’s initial in-service claim and effective date for the claims that are granted service connection in this decision are granted an effective date of August 1, 2010. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection 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). Certain chronic diseases may be presumed to have been incurred in or aggravated by service if manifested to a compensable degree within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309. To show chronicity there is a requirement of a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic”. 38 C.F.R. § 3.303(b). In these types of cases the disease is presumed under the law to have had its onset during service even though there is no evidence of that disease during service. 38 C.F.R. § 3.307(a) (2018). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1113 (2012); 38 C.F.R. §§ 3.307(d), 3.309(a). Pursuant to 38 C.F.R. § 3.309(a) if a disease is not shown to be chronic during service or the one-year presumptive period, then service connection may also be established by showing a continuity of symptomatology after service. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established by demonstrating: (1) that a condition is shown in service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Id. However, to use continuity of symptoms to establish a direct service connection is limited only to those disease listed under 38 C.F.R. § 3.309(a) and does not apply to other disabilities. VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21. Vet. App. 303 (2007). When there is an approximate balance between positive and negative evidence, equipoise, the benefit of the doubt doctrine must apply in favor of the Veteran. But when the preponderance of the evidence weighs against the claims of the Veteran the claim will be denied on its merits, and when the preponderance of the evidence weighs for the claims of the Veteran the claim will be granted on its merits. In those cases, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for HTN The Veteran contends that she is entitled to service connection for HTN. Specifically, the Veteran contends that she began taking blood pressure medication and had multiple providers diagnose her with HTN while in service. The Board finds that the Veteran has a current diagnosis of HTN and has met the first element of service connection. Additionally, the Board notes that the Veteran in-service began taking medication for high blood pressure and continued to utilize the medication on and off throughout her active duty service. The Board also notes that the Veteran at different times was diagnosed with HTN while in service or within one year of active duty service, for example in January 1992, December 2009, April 2010, May 2010, and December 2010. In reviewing the Veteran’s service treatment records the Veteran also has multiple elevated blood pressure readings during service and within one year from separation from service that indicated she met the requirements of HTN per VA regulations. See 38 C.F.R. §§ 3.303, 4.104 Diagnostic Code 7101, Note (1) (2018). The Veteran’s service treatment records indicated elevated blood pressure readings in December 2009, April 2010, and May 2010, that met the systolic and diastolic requirements for VA purposes for HTN. Id. The Veteran’s elevated blood pressure readings and multiple diagnoses of HTN in-service and within one year of separation indicated evidence of an inservice incurrence that meets the second element of service connection. The Board also recognizes the Veteran’s extensive testimony of the VA providers inconsistencies as to whether she was on blood pressure medication and whether she had a diagnosis during service. The Veteran indicated that she began taking medications in service, was diagnosed by multiple providers with HTN, and continued to have treatment for HTN from service to present. The Board finds the Veteran’s testimony to be competent, credible, and with significant probative weight. The Veteran also submitted a Disability Benefits Questionnaire (DBQ)in November 2019 that confirmed the diagnosis of HTN on multiple occasions in service and the Veteran’s current diagnosis of HTN, including her use of blood pressure medications while in service. The Board finds the DBQ submitted by the Veteran to be competent, credible, and with significant probative weight. The Board further notes that there is no evidence, medical or lay evidence, between the Veteran’s service and present that indicates that the Veteran does not have HTN, that it has dissipated or disappeared from the time of the Veteran’s service until now, and nothing to show intercurrent causes as the Veteran’s elevated blood pressure readings spanned from service until present and continue. The Board finds that there is no evidence to legitimately question the diagnosis of HTN and its chronicity since service. See 38 C.F.R. § 3.303(b). Therefore, the Veteran’s HTN is found to have had its onset during service and no affirmative evidence of record to rebut this presumption. 38 C.F.R. §§ 3.307(d), 3.309(a). After reviewing the evidence of record the preponderance of the evidence is in favor of the Veteran’s claim and the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107. Therefore, the Veteran’s claim for service connection for HTN is granted effective August 1, 2010. Entitlement to service connection for a reproductive disorder, claimed as menorrhagia The Veteran contends that she is entitled to service connection for a reproductive disorder. Specifically, she contends that she experienced abnormal bleeding, cramps, and clotting outside of her normal menstrual cycles which began in service. After reviewing the Veteran’s medical treatment records the Veteran during the appeal period had endometrial ablation in April 2013 to treat the Veteran’s reproductive disorder, noted as dysplasia and menorrhagia. A current disability diagnosed at any point within the appeal period, even if the disability resolves during the appeal period (becomes asymptomatic) may be subject to service connection. See McClain v. Nicholson, 21 Vet. App. 219 (2007). In the November 2019 hearing the Veteran testified that after the ablation she no longer had issues with abnormal bleeding and no longer had symptoms of the reproductive disorder as claimed. As the Veteran was treated during the appeal period and has resolved her symptoms of the reproductive disorder during the appeal, the Board finds that the Veteran has met the first element of service connection. The Veteran also received a VA examination in May 2010, that noted her diagnoses of menorrhagia, perimenopausal, and cervical dysplasia. The examiner noted a history of irregular menses with severe cramping, dysplasia diagnosed in 1992, menorrhagia, and an onset of abnormal bleeding in 2001. The examiner further found that the Veteran was perimenopausal with diagnoses of dysplasia and menorrhagia. The Board notes that the examination occurred while the Veteran was still in service and finds that the Veteran’s service treatment records were consistent with treatment for menorrhagia and dysplasia. The Board finds that the Veteran’s treatment and diagnoses in service indicated evidence of an inservice incurrence that meets the second element of service connection. The remaining issue is whether there is a causal connection between the Veteran’s in-service reproductive disorder and the disorder treated during the appeal period. The Board finds that the preponderance of the evidence is in favor of the Veteran’s claims for service connection as the Veteran’s treatment of her reproductive disorder occurred in-service and continued throughout her VA treatment records after service. The Board notes the Veteran was treated for complaints of a reproductive disorder from separation until April 2013. The Board finds that the Veteran’s VA treatment records, her service treatment records, and VA examination of May 2010 are all competent, credible, and with significant probative weight. The Veteran testified in a November 2019 hearing that she noticed abnormal bleeding in 2005, it worsened in 2007, and even more so in 2010. She also indicated that she was not menopausal in service and was still not in 2013, per the testing that was done to determine if her ovaries were still functional, which they were found to be. The Veteran indicated that she was misdiagnosed in service and treated with medications that did not help or address her issues. She further indicated that she had continued with symptoms of her reproductive disorder and abnormal bleeding from service until 2013 when she chose to have an endometrial ablation. After the procedure she no longer experienced abnormal bleeding and had no symptoms thereafter. The Board notes that the Veteran had specialized education, experience, and knowledge as she was a nurse before she retired. As such the Board finds the Veteran’s testimony and specific medical knowledge to be competent, credible, and with significant probative weight. See 38 C.F.R. § 3.159 (2018). The Board further notes that there is no evidence, medical or lay evidence, between the Veteran’s service and present that indicated that the Veteran does not have a reproductive disorder, that it has dissipated or disappeared from the time of the Veteran’s service until her procedure in April 2013, and nothing to show intercurrent causes as the Veteran’s reproductive disorder spanned from service until April 2013. The Board finds that there is no evidence to legitimately question the diagnosis of a reproductive disorder in service and its chronicity since service. See 38 C.F.R. § 3.303(b). Therefore, the Veteran’s reproductive disorder is found to have had its onset during service and no affirmative evidence of record to rebut this presumption. 38 C.F.R. §§ 3.307(d), 3.309(a). In consideration of the Veteran’s extensive reproductive treatment in service, her diagnosis of a reproductive disorder in service, and continuous symptoms and treatment after service, the Board finds that the preponderance of the evidence is in favor of the Veteran’s claim for service connection and the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107. Therefore, the Veteran’s claim for service connection for a reproductive disorder is granted effective August 1, 2010. REASONS FOR REMAND Entitlement to service connection for conjunctivitis The Veteran claims that she is entitled to service connection for conjunctivitis. The Veteran received a VA examination for her eyes in December 2010 that noted no diagnosis of an eye condition except a history of an extended case of conjunctivitis in service in June 2007. The Board finds the VA examination to be inadequate for VA purposes as it does not provide an opinion if the Veteran’s extended conjunctivitis in service was considered as a current disability at the time and provided no opinion for the Veteran’s claim of service connection. The Board also notes that the VA examination failed to mention the nine other instances of conjunctivitis during the Veteran’s active duty service. As a general matter, once VA undertakes to provide an examination, it must provide an adequate one or, at a minimum, notify the claimant why one will not be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran testified in a November 2019 hearing that she had conjunctivitis almost every year since separation from service with a severe case of conjunctivitis in 2014 that lasted for six weeks. The Veteran testified that her now diagnosed dry eye syndrome is due to her conjunctivitis from service and has caused visual acuity issues. She also indicated that her dry eye issues were constant, and she would still suffer from instances of conjunctivitis. The Board finds the Veteran’s testimony to be competent, credible, and with significant probative weight. After reviewing the Veteran’s treatment records the Board notes that the Veteran was diagnosed with dry eye syndrome at the same time as being treated for acute conjunctivitis in June 2014 and July 2014, both during the appeal period. As the VA examination of December 2010 is inadequate there is no competent medical opinion as to the Veteran’s claims that her in-service conjunctivitis is related to her episodes of conjunctivitis after separation, no opinion as to whether her currently diagnosed dry eye syndrome is causally related to her conjunctivitis, and no opinion as to whether her visual acuity claims are connected to her in-service bouts of conjunctivitis. Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103(A) (2012); 38 C.F.R. § 3.159. This matter is REMANDED for the following actions: 1. The Veteran should be scheduled for a VA examination regarding her claimed conjunctivitis. Have the examining physician/specialist provide information to demonstrate that they are qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation). This information is to be associated with the Veteran’s claims file. The Veteran’s claims file and a copy of this remand must be provided to the examiner for review and the examination report should reflect that these items were available for review. After performing all indicated tests and studies, the examiner should address the following: (a.) Identify any and all eye disabilities that the Veteran currently suffers from. (b.) For each identified eye disability, opine as to whether it is at least as likely as not that this disability manifested during, or as a result of, active military service. In formulating the above opinions, the examiner must consider and discuss all lay statements and assertions provided by the Veteran to include whether her in-service conjunctivitis is related to her episodes of conjunctivitis after separation, if her current dry eye syndrome was caused by her conjunctivitis, or that her visual acuity was also caused or due to conjunctivitis. A complete rationale must be provided for any and all opinions offered. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence or information might allow for a more definitive opinion. (CONTINUED NEXT PAGE) 2. Following completion of the foregoing, the Agency of Original Jurisdiction (AOJ) should review the record, perform any necessary development, and readjudicate the claim on appeal. If the appeal is denied, the AOJ should issue an appropriate Supplemental Statement of the Case (SSOC), afford the Appellant and her representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C.A. Teich, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.