Citation Nr: 20044593 Decision Date: 07/02/20 Archive Date: 07/02/20 DOCKET NO. 13-13 648 DATE: July 2, 2020 ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for a gynecological disorder is denied. Entitlement to service connection for a disorder manifested by tics of the right arm is denied Entitlement to service connection for a disorder manifested by tics of the left arm is denied Entitlement to service connection for a disorder manifested by tics of the right leg is denied Entitlement to service connection for a disorder manifested by tics of the left leg is denied. Entitlement to service connection for peripheral neuropathy of the left lower extremity is denied. REMANDED Entitlement to service connection for cervical spine disability is remanded. Entitlement to service connection for multiple sclerosis is remanded. Entitlement to service connection for migraine is remanded. FINDINGS OF FACT 1. A lumbar spine disability was not manifest in service and is not attributable to service. 2. A gynecological disorder was not manifest in service and is not attributable to service. 3. The Veteran does not have disorders manifested by tics in the arms and legs. 4. The Veteran does not have peripheral neuropathy of the left lower extremity. CONCLUSIONS OF LAW 1. A lumbar spine disability was not incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. A gynecological disorder was not incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 3. Disorders manifested by tics in the arms and legs were not incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 4. Peripheral neuropathy of the left lower extremity was not incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to September 1974. The Veteran appeared at a Board hearing in October 2015; a transcript is of record. With respect to the Board hearing, the undersigned Veterans Law Judge clarified the issues on appeal, identified potential evidentiary deficits, and clarified the type of evidence that would support the Veteran’s claim. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. Service Connection Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110 (2012). To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511–12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Lumbar spine The Veteran has contended she has intervertebral disc disease and back pain which started in service and continued to the present. See May 2009 VA Form 21-526. The Veteran, at her Board hearing, contended that her back started hurting in service, although she could not remember exactly how the pain started, and she went to sick call. She was given some type of medication but had no other treatment. A July 1974 service treatment record reports that the Veteran was hit in the stomach and back while playing volleyball. The Veteran did not have a separation examination nor was any report of medical history taken at separation. According to a May 2010 VA examination, the Veteran contended back pain started in August 1974. A private treatment record dated in 1991 notes that the Veteran had a lumbar myelogram with CT scans, revealing minor/mild disc bulging at L3-4 and L4-5. Conclusion was lumbar radiculopathy. A private treatment record dated in May 2002 notes a bone density study of the lumbar spine and hip, found borderline osteopenia. An additional bone density study of the lumbar spine and hip in March 2009 found osteoporosis. A VA treatment record dated in January 2008, when the Veteran established care with VA, notes that the Veteran had back pain for three days, but had similar intermittent pain in the past. Degeneration of thoracic or lumbar spine with intervertebral disc, based on the Veteran’s self-report, was added to the Veteran’s problems list in January 2008. A May 2010 private X-ray noted that the Veteran had good alignment of the lumbar spine with disc spaces preserved and vertebral body height maintained. Impression was negative lumbar spine. VA Examination dated in July 2016 reports that a lumbar spine disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner found that the Veteran had degenerative disc disease with spondylosis secondary to osteopenia. Rationale was that a review of the Veteran’s service treatment records are silent for a diagnosis of a lumbar spine disability. The Veteran’s current lumbar spine findings were reflective of osteopenia (beginning stage of osteoporosis). X-ray dated in June 2016 related degenerative disc disease which is directly related to aging. Further, the Veteran does not have intervertebral disc syndrome, based on examination and X-ray dated in June 2016. Therefore, the Veteran’s current lumbar disorder was less likely than not caused or incurred as a result of service. Therefore, it is less likely than not that any current lumbar spine disability is related to any event or injury during service, including her being hit in the back by a volleyball in July 1974, as this did not constitute a chronic disorder. The Veteran served less than 90 days and, therefore, the law regarding chronic diseases does not apply. See 38 C.F.R. § 3.307(a)(1). The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran is competent to report pain. She reported pain started in service. However, her reports of pain starting in service and continuing after are not credible. She reported multiple different start dates for pain, including dates after service. In contrast, the Board finds that the VA medical opinion to be more probative. The medical professional that provided the medical opinion is competent to provide an opinion on this matter. The examiner determined that the Veteran’s lumbar disability was due to aging. The examiner had knowledge of the Veteran’s medical history, examined the Veteran, and reviewed the evidence of records and provided conclusions in medical documents based on sufficient facts and data. Therefore, this opinion is entitled to significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives more probative weight to the VA opinion. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. 2. Gynecological disorder At her Board hearing, the Veteran contended a gynecological disorder (claimed as abnormal pap smear and hysterectomy) started in service. Service treatment records indicate the Veteran had heavy menstrual bleeding in August 1974 for one day. Examination of the adnexa was normal, and the uterus size was normal. The Veteran was treated with bed rest and the bleeding stopped. The Veteran also had an abnormal PAP smear in August 1974. Cytology examination, also in August 1974, noted a routine PAP smear with normal cervix, normal adnexa and normal uterus. The impression was mild dysplasia. There are private treatment records from an obstetrician-gynecologist dated from December 1976 to January 1980. The post-service documents report painful pelvic adhesions on the left ovary and tubes. A November 1979 private operation report notes post-operative diagnosis was chronic pain secondary to adhesions. The Veteran had reported intermittent lower abdominal pain for three years, no history of previous pelvic inflammatory diseases, ruptured appendix, or endometriosis. The Veteran underwent a total vaginal hysterectomy and a left salpingo-oophorectomy in 1980. The Veteran also had a right salpingo-oophorectomy in the 1980s (the exact year is unclear). A VA Examination was conducted in July 2016. The examiner found that a gynecological disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Rationale was that review of the Veteran’s service treatment records are reflective of an isolated acute complaint in August 1974 of menstrual irregularities. According to the American Association of Obstetrics and Gynecological, this is a variant of normal for a female to experience idiopathicological irregular menstrual cycle and does not constitute achromic gynecological disorder. This complaint was isolated and acute and resolved with treatment as evidenced by no further complaints or sick call visits during active service. Further, the Veteran had a hysterectomy in 1980, almost 6 years post service. The Veteran states she had a son in 1972 and an abortion in 1976 and no other pregnancies before her hysterectomy. Literature supports an abortion among the leading cause of female gynecological bleeding disorders and the Veteran had an abortion in 1976 post active service and prior to her hysterectomy. The Veteran does not have a diagnosis of female sexual arousal disorder noted. Therefore, it is my opinion that the Veteran’s current claimed gynecological disorder, namely status-post hysterectomy is less likely than not caused, or incurred, as a result of service. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran is competent to report her lay observable symptoms of this disorder. Service treatment records confirm the symptoms described. However, as a lay person, she cannot provide an opinion connecting those symptoms to the post-service vaginal hysterectomy and salpingo-oophorectomy. In fact, of the symptoms reported prior to these procedures (intermittent lower abdominal pain), - which are lay observable – the Veteran reported such symptoms started in 1976, after service. In contrast, the Board finds that the VA medical opinion is more probative. The medical professional that provided the medical opinion is competent to provide an opinion on this matter. The examiner determined that the Veteran’s disability was due to a post-service event (abortion in 1976). The examiner had knowledge of the Veteran’s medical history and examined the Veteran and reviewed the other records and provided conclusions in medical documents based on sufficient facts and data. Therefore, this opinion is entitled to significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives more probative weight to the VA opinion. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. 3.– 7. Disorder(s) manifested by tics of the right and left leg and arm and peripheral neuropathy of the left lower extremity These claims are separate from the claim for multiple sclerosis, which also manifests in the arms and legs. See, e.g., August 2013 VA neurological note (noting multiple sclerosis flashes in the arms, with weakness in one or more side). The Veteran claimed she had stiffness and pain of the arms and legs in service and that she could not move. She explained that if felt like a tingling. A VA neurological treatment note dated in August 2013 states the Veteran had neurologic symptoms starting in 1991, consistent with numbness and tingling in the arms and feet. VA neurological notes report all symptoms were due to relapsing-remitting multiple sclerosis (RRMS) and there is no report of tics or neuropathy. There is no mention elsewhere of tics or neuropathy in VA treatment records. A VA Examination dated in July 2016 notes that, after examination by a neurologist, there was no disturbance of cognition, memory, affect, attention, language, or speech. A VA peripheral nerve examination found no peripheral nerve disorder or neuropathy. The Veteran was unable to distinguish between multiple sclerosis symptoms and those she claimed were due to different disabilities. There was no mention of peripheral neuropathy in her VA treatment records. All testing (muscle strength, reflex, sensory, trophic, gait, Phalen’s sign, Tine’s sign) were normal. The examiner found all nerve and radicular groups, upper and lower, were normal. The examiner found that the Veteran was found to be intelligent and articulate. No tremor, tic or dysmetria beyond what might be normally expected for a woman of her age. Rises on toes and heels, squats 45 degrees, right-handed, adequate grip, no atrophy of interosseous or any other muscle group, reflexes are normoactive and reinforce. There were no pathologic reflexes. Cooperation with muscle testing is only fair but deemed reliable. Extraocular muscles (EOMs) full, with no evident strabismus or nystagmus. No afferent pupillary defect noted. Speech completely clear, normal cough, and gag. Sensation is intact distally to fine touch, pin, and position sense. Fundus examination: no evidence of increased intracranial pressure. Additionally, the lower and upper peripheral nerves were all found to be normal in nature and no manifestations of residuals of tics to the arms or legs was found. Given the above, there is no disorder(s) manifested by tics of the right and left leg and arm and peripheral neuropathy of the left lower extremity. The Veteran herself has stated she cannot differentiate the causes of various physical problems. Here, a medical professional (VA examiner) found no disability. The examiner had knowledge of the Veteran’s medical history, examined the Veteran, and reviewed the evidence of record and provided conclusions in medical documents based on sufficient facts and data. Based on the reported findings on the VA examination report, the Board finds this opinion is entitled to significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The VA treatment records likewise support this finding. Therefore, there is none of the above captioned disabilities. The Board uses the definition of disability as noted in Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991), which stated: this definition comports with the everyday understanding of disability, which is defined as an inability to pursue an occupation because of physical or mental impairment. See also Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. Apr. 3, 2018) (Disability refers to the functional impairment of earning capacity, not the underlying cause of said disability). Equally important, the more probative evidence shows no underlying disease or injury. Service connection requires the existence of disability and such disability must be due to underlying acquired pathology (disease or injury). In this case, the weight of the evidence is against a finding of any tic or peripheral neuropathy of the left lower extremity disability. The Board finds that the weight of the evidence demonstrates that the Veteran does not have such a disability. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application, and the claims must be denied. REASONS FOR REMAND 1.–3. Cervical spine disability, multiple sclerosis, and migraine headaches A November 2018 Social Security Administration (SSA) inquiry shows that the Veteran has been disabled since 1992. There is a May 1993 SSA decision granting disability for multiple sclerosis, left side paresthesias, herniated cervical disc, and chronic headaches. However, the Veteran submitted this document herself, and she has not submitted all documents listed as exhibits to the decision, including medical records, and there is no evidence of any attempt to obtain these records from SSA. As a result, there are outstanding and relevant SSA records. A remand is required to allow VA to request these records. The matters are REMANDED for the following action: Obtain the Veteran’s records from the Social Security Administration. Document all requests for information as well as all responses. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Yoffe, 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.