Citation Nr: 21000236 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 13-04 080 DATE: January 4, 2021 ORDER Service connection for diverticulosis is denied. Service connection for lumbosacral spine strain and degenerative disc disease (back condition) is denied. Service connection for cervical spine degenerative disc disease (neck condition) is denied. Service connection for radiculopathy of the bilateral lower extremities is denied. Service connection for endometriosis is denied. FINDINGS OF FACT 1. A May 2020 VA examiner provided a well-explained opinion that the Veteran’s diverticulosis was not caused by service because the Veteran’s service treatment records were absent for any reports of gastrointestinal issues and a review of UpToDate failed to support a relationship between usage of NSAIDs and the development of diverticulosis. 2. An October 2012 VA examiner opined that the Veteran’s neck and back conditions are less likely than not causally related to service because service treatment records are absent for reports of neck or back pain and because the Veteran was involved in a post-service motor vehicle accident after which he reported neck and back pain. Additionally, an August 2020 VA examiner provided an opinion that the Veteran’s fibromyalgia did not originate during, or one year after service because the Veteran was not diagnosed with fibromyalgia until 17 years after exiting from service. 3. An October 2012 VA examiner opined that the Veteran does not have a diagnosis of radiculopathy of the bilateral lower extremities. The evidence of record is silent for any diagnosis of radiculopathy of the bilateral lower extremities. 4. A May 2020 VA examiner opined that it was less likely than not that the Veteran’s pre-existing endometriosis was clearly and unmistakably aggravated beyond its natural progression by an in-service injury, event, or illness because, although a temporary aggravation is plausible, the examiner found no medical evidence of permanent aggravation of the pre-existing endometriosis or any other gynecological issues. CONCLUSIONS OF LAW 1. The criteria for service connection for diverticulosis have not been met. 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for a back condition have not been met. 38 C.F.R. §§ 3.102, 3.303, 3.385. 3. The criteria for service connection for a neck condition have not been met. 38 C.F.R. §§ 3.102, 3.303, 3.385. 4. The criteria for service connection for radiculopathy of the bilateral lower extremities have not been met. 38 C.F.R. §§ 3.102, 3.303, 3.385. 5. The criteria for service connection for endometriosis have not been met. 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1986 to September 1986 and from August 1996 to August 1999. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018 a hearing was held before the undersigned. A transcript is of record. In November 2018 and April 2020, the Board remanded these claims for further development; this has been completed and the claims are now ready to be adjudicated. Service Connection Legal Criteria Service connection may be granted for a disability due to a disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also 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. To substantiate a claim of service connection there must be evidence of: (1) a present disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). “Secondary” service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected condition. 38 C.F.R. § 3.310. [CONTINUED ON NEXT PAGE] 1. Service connection for diverticulosis is denied. Factual Background There are no reports of gastrointestinal issues in the Veteran’s service records. The Veteran was diagnosed with diverticulosis in 2012. See treatment records. The Veteran testified at the Board hearing that she believes her diverticulosis is a result of her taking NSAIDs for her endometriosis. The Veteran submitted a June 2018 private medical opinion from Dr. GM who opined that the Veteran’s condition of gastroesophageal reflux disease (GERD), may as likely as not have been aggravated by military service due to the fact that she took NSAIDs due to the endometriosis while on active duty. The Veteran was afforded a May 2020 VA examination during which the conducting physician opined that it is less likely than not that the Veteran’s diverticulosis is causally related to service. As a rationale, the examiner opined that there was no diagnosis of diverticulosis in service and per UpToDate search, NSAIDs do not cause diverticulosis. Analysis The Board finds that the preponderance of the evidence is against a finding that the Veteran’s diverticulosis is causally related to service. The Board assigns probative value to the May 2020 VA examiner’s opinion that the Veteran’s diverticulosis was not cause by the Veteran’s use of NSAIDs because NSAIDS do not cause diverticulosis (supported by the citation to UpToDate). The Board acknowledges that the Veteran provided testimony that she believes her diverticulosis was due to her taking NSAIDs during service. Unfortunately identifying the cause of diverticulosis is a medically complex issue because the mechanism and progression of the illness are not observable and because there are multiple possible causes for the symptoms and these are also not observable. The Veteran, as a layperson, is not competent to provide such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Additionally, the Board cannot assign probative value to Dr. GM’s opinion because they did not opine that it was the Veteran’s diverticulosis that was causally related to service but rather the Veteran’s GERD. Accordingly, service connection for diverticulosis must be denied. 2. Service connection for a back condition is denied. 3. Service connection for a neck condition is denied. Factual Background The Veteran did not report experiencing any back or neck issues during service. See service treatment records. A gynecology note from September 2007 indicates that the Veteran was involved in a post-service motor vehicle accident in 2005 which resulted in neck pain and back pain. The Veteran was diagnosed with mild degenerative cervical spondylosis at an October 2012 VA examination. The Veteran reported at the examination that she had been suffering from neck pain for the past six years (since approximately 2006). At the October 2012 VA examination, the Veteran was also diagnosed with a thoracolumbar spine condition. The Veteran reported that she had been experiencing low back pain for several years and that the onset of this condition developed within 6-12 months following her release from active duty in 1999. The examiner opined that it is less likely than not that the Veteran’s back condition was causally related to his service-connected right hip condition. As a rationale, the examiner explained that the Veteran was not demonstrating an abnormal gait or significant evidence of change in body mechanics, loadbearing or biomechanics such as would have likely caused the Veteran’s back condition. The Veteran was provided a February 2014 VA examination during which the conducting physician opined that it was less likely than not that the Veteran’s back condition was causally related to his service-connected bilateral lower extremity conditions. As a rationale, the physician explained that the Veteran had no evidence of chronic abnormal gait, abnormal biomechanics or weight bearing due to her service-connected conditions. The Veteran was provided an October 2019 VA examination during which the conducting physician opined that it was less likely than not that the Veteran’s back and neck conditions were causally related to service. As a rationale, the examiner explained that the Veteran’s separation report of medical history documents a negative response to back pain. The examiner opined that it was more likely than not that the Veteran’s back and neck conditions were related to the post-service motor vehicle accident. The Veteran submitted a private medical opinion from Dr. WC who opined that the Veteran’s conditions were causally related to her diagnoses of rheumatoid arthritis and fibromyalgia. An August 2020 VA examiner opined that it was less likely than not that the Veteran’s fibromyalgia was incurred in or diagnosed within one year of active duty service. The examiner explained that the Veteran was not diagnosed with fibromyalgia until 2016, which was 17 years after exiting from service. The examiner acknowledged the Veteran’s statements that she experienced hip pain prior to leg, neck and back pain during service but indicated that it did not indicate a diagnosis of fibromyalgia. Analysis The Board finds that the preponderance of the evidence is against a finding that either the Veteran’s neck or back conditions are causally related to service. The Board assigns probative value to the October 2019 VA examiner’s opinion that the Veteran’s back and conditions were less likely than not causally related to service and were, instead, caused by the post-service motor vehicle accident. The examiner indicated they reviewed the claims file and supported their opinion with a rationale. A review of the claims file indicates that the Veteran was involved in a motor vehicle accident and subsequently reported neck and back pain. The Board also finds that the preponderance of the evidence is against a finding that the Veteran’s back and neck conditions were related to an in-service occurrence of fibromyalgia. The Board assigns probative value to the August 2020’s examiner’s opinion because they indicated they reviewed the claims file and supported their opinion with a rationale. Indeed, the Veteran was not diagnosed with fibromyalgia until 17 years after exiting from service. The Board cannot assign probative value to Dr. WC’s private medical opinion because he does not indicate that the Veteran’s fibromyalgia was connected to service. Additionally, Dr. WC did not specify which conditions might have been aggravated by the Veteran’s fibromyalgia. Finally, the Board cannot assign probative value to Dr. WC’s opinion because they did not support their opinion with a rationale. The Board acknowledges the Veteran’s statements that she suffered from hip pain during service which predated her neck and back pain but while she is competent (qualified) to report observable symptoms, she is not competent to provide a medical diagnosis of fibromyalgia. See Jandreau supra. Finally, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s back condition was caused or aggravated by his service-connected conditions on a secondary basis. The Board assigns probative value to the October 2012 and February 2014 VA examiners’ opinions because they indicated that they reviewed the evidence of record and supported their opinion with a rationale. Accordingly, service connection for a neck condition and a back condition must be denied. 4. Service connection for radiculopathy of the bilateral lower extremities is denied. At an October 2012 VA examination, the conducting physician indicated that there were no findings consistent for a diagnosis of bilateral lower extremity radiculopathy. The remainder of the evidence of record is also absent for a diagnosis of radiculopathy of the bilateral lower extremities. In the absence of proof of a present disability due to disease or injury, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (Fed. Cir. 1992). Additionally, while the Veteran is competent to report that she experiences symptoms of leg pain, she is not competent to provide a diagnosis in this case or determine that any given symptoms are manifestations of a current disorder because leg pain can have multiple possible causes and these causes are not all observable to a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Accordingly, service connection for radiculopathy of the lower extremities must be denied. 5. Service connection for endometriosis is denied. Service connection may be awarded when a pre-service medical condition is aggravated by military service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). A preexisting medical condition will be presumed to have been aggravated by service, where there is an increase in disability during such service, unless there is a specific finding that the increase is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). If there is an increase in severity, then “clear and unmistakable evidence” is required to rebut the presumption of aggravation. However, if (based on all the relevant evidence) the medical condition did not increase in severity during service, then aggravation is not established. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Factual Background The Veteran’s enlistment examination indicates that she had a pre-existing ovarian cyst and that she underwent a laparoscopy at 16 years old. The Veteran’s service treatment records indicate that she reported pelvic pains for which she was given NSAIDs. The Veteran submitted a June 2018 private medical opinion from Dr. WC who opined that it was as likely as not that the Veteran’s current conditions were aggravated by her pre-existing conditions. Dr. WC explained that the Veteran’s current diagnosis is rheumatoid arthritis and fibromyalgia and that her conditions were aggravated by fibromyalgia. The Veteran testified at the June 2018 Board hearing that during service she experienced painful menstrual periods. In compliance with the April 2020 Board remand instructions, the Veteran was provided an additional VA examination to determine whether her diagnosed endometriosis was aggravated by her service. A VA examiner provided a May 2020 medical opinion during which they opined that it was less likely than not that the Veteran’s pre-existing endometriosis was clearly and unmistakably aggravated beyond its natural progression by an in-service injury, event, or illness. As a rationale, the examiner explained that temporary aggravation is plausible, but there is no evidence of permanent aggravation of the pre-existing endometriosis or gynecological issues. The examiner explained that a thorough review of the medical literature failed to support a nexus (causal link). The examiner added that the Veteran’s post-service gynecological issues were a natural progression of what was starting to unfold pre-service. Analysis The Board finds that the preponderance of the evidence is against a finding that the Veteran’s pre-existing endometriosis was clearly and unmistakably aggravated beyond its natural progression by an in-service injury, event, or illness. The Board assigns probative value to the May 2020 VA examiner’s opinion that while temporary aggravation is plausible, there is no evidence of permanent aggravation of the pre-existing endometriosis or gynecological issues. The conducting physician indicated that they reviewed the claims file and supported their opinion with a rationale. The Board cannot assign probative value to the June 2018 private medical opinion submitted by the Veteran. The private physician did not address the legal question at issue, which is whether the Veteran’s endometriosis was aggravated by her pre-existing conditions. The Board notes that Dr. WC did not even diagnose the Veteran with endometriosis but rather rheumatoid arthritis and fibromyalgia. The Board acknowledges the Veteran’s assertion that her pre-existing endometriosis was aggravated beyond is natural progression due to her service. However, determining whether there has been aggravation of pre-existing endometriosis is a complex medical question that requires medical expertise, and the Veteran, as a lay person, has not indicated that she possesses the training or expertise to provide such a qualified opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Accordingly, service connection for endometriosis must be denied. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexander Bahus 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.