Citation Nr: 21004359 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-38 953 DATE: January 26, 2021 ORDER Entitlement to service connection for residuals of polycystic ovarian syndrome (PCOS), to include infertility, status post hysterectomy and bilateral salpingo-oophorectomy is granted. Entitlement to service connection for residuals of pharyngitis (claimed as laryngitis) and viral syndrome, to include post-surgical hypothyroidism, is denied. REMANDED Entitlement to service connection for diabetes mellitus is remanded. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, the evidence shows that her PCOS is related to active duty service. 2. The preponderance of the evidence demonstrates that the Veteran does not have any disabilities or symptoms, to include post-surgical hypothyroidism, related to service as result of the pharyngitis and viral syndrome treated in service. CONCLUSIONS OF LAW 1. The criteria for service connection for PCOS have been met. 38 U.S.C. §§ 1111, 1131, 1132, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for pharyngitis have not been met. 38 U.S.C. §§ 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1979 to March 1986. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in February and September 2020 and were remanded for additional development. The case is once again before the Board. The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in January 2019. A transcript of the hearing has been associated with the claims file. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires the following: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See 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). Entitlement to service connection for residuals of PCOS, to include infertility, status post hysterectomy and bilateral salpingo-oophorectomy is granted. The Veteran maintains that her hysterectomy and bilateral salpingo-oophorectomy were the result of her congenital PCOS which she was treated for in service. A review of the medical evidence of record reflects that the Veteran underwent a hysterectomy and bilateral salpingo-oophorectomy in November 1999 resulting in infertility; thus, the current disability element for this claim has been established. Regarding the in-service element, treatment records demonstrate that the Veteran received treatment for ovarian cysts in service with the first notation in March 1979. See March 1979 service treatment records. The Veteran was later diagnosed with PCOS. Therefore, an in-serve disease has been established. The threshold question is whether the Veteran’s congenital PCOS is considered a defect or a disease. VA’s Office of General Counsel has distinguished between congenital or developmental defects, for which service connection is precluded by regulation, and congenital or hereditary diseases, for which service connection may be granted, if initially manifested in or aggravated by service. See VAOPGCPREC 82-90, VAOPGCPREC 67-90. The VA General Counsel considered medical authorities and case law from other federal jurisdictions and concluded that a defect differs from a disease in that a defect is more or less stationary in nature, while a disease is capable of improving or deteriorating. See VAOPGCPREC 82-90 at para. 2. In September 2020, a VA examiner stated that the Veteran’s PCOS is a congenital disease. See September 2020 VA medical opinion. As the PCOS has been determined to be a congenital disease, VA cannot simply assume that, because of its congenital nature, the disease must have preexisted service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin v. Shinseki, 22 Vet. App. at 396-397. The existence of a congenital hereditary disease under 38 C.F.R. § 3.303(c) does not always rebut the presumption of soundness, and service connection may be granted for congenital hereditary diseases which either first manifest themselves during service or which preexist service and progressed at an abnormally high rate during service. See VAOPGCPREC 67-90; 55 Fed. Reg. 43,253 (1990). As an initial matter, the Board finds the evidence of record insufficient to rebut the presumption of soundness. The Veteran’s February 1978 entrance examination noted an abnormal pelvic examination and a July 1978 cytology report noted mild dysplasia prior to service. While a June 1986 VA examiner found that her PCOS pre-existed service, a September 2020 VA examiner found that the Veteran’s PCOS did not preexist service. Resolving all doubt in favor of the Veteran, the Board finds the PCOS did not preexist service; therefore, the presumption of soundness attaches. In June 1986, a VA examiner diagnosed the Veteran with PCOS that manifested prior to service. The examiner reported that the Veteran had irregular menstrual cycles prior to service, thus indicating that the condition pre-existed service. In September 2020, a VA examiner stated it was at least as likely as not the Veteran’s hysterectomy and salpingo-oophorectomy were etiologically related to her active duty, to include treatment of her PCOS. The examiner concluded that PCOS is a genetic congenital disease that first manifested in service. The examiner further stated that there was no evidence that the PCOS manifested before service and the Veteran’s symptoms followed the natural progression of the disease. The Board finds both medical opinions to be competent and credible. In light of the foregoing, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran’s residuals of PCOS, to include infertility, status post hysterectomy and bilateral salpingo-oophorectomy are related to her active duty service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for residuals of PCOS, to include infertility, status post hysterectomy and bilateral salpingo-oophorectomy is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to service connection for residuals of pharyngitis and viral syndrome, to include post-surgical hypothyroidism, is denied. The Veteran asserts that her in-service pharyngitis and viral syndrome resulted in her hypothyroidism. See March 2019 Correspondence. The Veteran maintains she has experienced sore throats and swelling since service. The claim before the Board is for service connection for residuals of pharyngitis and viral syndrome, to include hypothyroidism. During the pendency of the appeal, the Veteran filed a claim for service connection for hypothyroidism. In a December 2015 rating decision, service connection for hypothyroidism was denied. The Veteran was notified of this decision and her appeal rights but did not appeal this decision. Regarding a current disability; the record demonstrates that the Veteran was diagnosed with multinodular goiter and underwent a thyroidectomy in August 2002, resulting in hypothyroidism. Therefore, a current disability has been demonstrated. Regarding an in-service incurrence, service treatment records demonstrate that the Veteran was diagnosed with pharyngitis in service. In November 1979, the Veteran presented with a sore throat, chills, and stomach pain. She was diagnosed with pharyngitis and a viral syndrome. A follow-up visit, two days later, reflects the Veteran was diagnosed with an upper respiratory infection and was told to take throat lozenges. In October 1980, the Veteran reported a sore throat and was diagnosed with a viral syndrome. Thus, an in-service disease has been established. As noted above, the Veteran underwent a thyroidectomy in August 2002. The pre-operative and post-operative diagnosis were multinodular goiter. In October 2015, a VA examiner stated it was less likely than not that the Veteran’s thyroid condition was related to service. The examiner acknowledged the 1981 thyroid note in her treatment records, but found no other treatment or diagnosis of a thyroid condition until her thyroidectomy in 2002. The examiner also noted the Veteran’s statements that her pharyngitis caused her thyroid issues. The examiner concluded it was unlikely that the 1981 thyroid condition was related to service because it is not likely that any thyroid problem could go untreated for 20 years. In September 2020 a VA examiner found it less likely than not that the Veteran had any disability or symptoms, to include post-surgical hypothyroidism, related to service as result of the pharyngitis and viral syndrome treated in service. The examiner reasoned that the pharyngitis and viral syndrome treated in service were acute self-limited viral infections unrelated to the multinodular goiter which resulted in the Veteran’s hypothyroidism. The examiner stated that pharyngitis and viral syndrome are viral, and multinodular goiter is an autoimmune disorder. The examiner noted the Veteran’s contentions that her sore throat and neck swelling continued after service and progressed to include difficulty breathing. The examiner reasoned that it was coincidental that her sore throat and multinodular goiter occurred in the same timeline, but that pharyngitis and multinodular goiter were unrelated. The examiner explained that multinodular goiter may cause neck swelling, can be asymptomatic or visible, can cause compressive symptoms of difficulty breathing or swallowing, but it does not cause sore throat, which is associated with pharyngitis. The Board finds the September 2020 VA opinion to be the most probative evidence of record. This opinion is by a medical professional (who is competent to provide such an opinion), reflects familiarity with the entire record, and is accompanied by adequate rationale referring to accurate factual data for support. Thus, the opinion finding that it is less likely than not that the Veteran had any disability or symptoms, to include post-surgical hypothyroidism, related to service as result of the pharyngitis and viral syndrome treated in service is the most probative evidence in this matter. Additionally, the evidence is not otherwise contradicted. To the extent the Veteran maintains that her hypothyroidism is related to chemical exposure, the Board finds that there is no indication of a nexus aside from the Veteran’s lay statements. The Veteran maintains that she was exposed to exhaust and cleaning chemicals while on the flight line. The Board notes the Veteran’s contentions that she was exposed to exhaust and chemicals during her occupational duties in the service, but finds additional development unwarranted because the record does not include any evidence suggesting that her hypothyroidism is related to the in-service chemical aside from the Veteran’s unsupported statements. The Board acknowledges the Veteran believes that her hypothyroidism is related to active service, to include claimed exhaust and chemical exposure, but notes that she is not competent to address a medical question that is beyond the purview of lay knowledge and requires medical expertise. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The question of whether a disability is the result of in-service chemical exposure is beyond the competency of a lay person and requires additional training or education. The Veteran’s thyroid condition has not otherwise shown to be related to exhaust or chemical exposure. In conclusion, service connection for residuals of pharyngitis and viral syndrome must be denied. As the preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). REASONS FOR REMAND Entitlement to service connection for diabetes is remanded. Although the Board regrets the delay associated with this remand, an additional remand is required to ensure that the Veteran is afforded full compliance with the statutory duty to assist. In September 2020 a VA examiner opined that it was less likely than not that the Veteran’s diabetes was incurred in service or otherwise related to service, to include medication she was given to treat PCOS and infertility and promote ovulation. The examiner reasoned that there was no evidence of diabetes or symptoms of diabetes in service. The examiner further stated that when obesity is linked to diabetes, insulin resistance is involved and PCOS is linked to insulin resistance, thus treatment for PCOS would decrease the risk of diabetes. The Board finds that an opinion is needed. While the September 2020 opinion concluded the Veteran’s medications did not cause her diabetes, an opinion is needed to determine if her medications caused or aggravated her current obesity thereby impacting her diabetes. The Board observes that obesity is not considered a disease or disability for VA purposes and is not subject to service connection. See Marcelino v. Shulkin, 29 Vet. App. 155, 156 (2018). The Board is cognizant that the Veteran filed a claim for obesity due to her fertility medications; which was denied in the September 2014 rating decision on the basis that obesity is not a compensable disability. The Veteran initially filed a Notice of disagreement regarding that determination; however, she did not perfect an appeal after the RO issued a statement of the case on the issue. While obesity is not considered a disability for VA purposes, obesity may be an “intermediate step” between a service-connected disability and a current disability that may be connected on a secondary basis. 38 C.F.R. § 3.310; see also Walsh v. Wilkie, 32 Vet. App. 300 (2020). While the examiner noted that PCOS is linked to insulin resistance and when obesity is linked to diabetes, it is through insulin resistance. Accordingly, a new opinion is necessary. The matters are REMANDED for the following action: 1. Arrange for an appropriate health care provider to review the Veteran’s claims file and provide an opinion as to: Whether it is at least as likely as not that (i) the service-connected PCOS disability caused or aggravated the Veteran's obesity; (ii) if so, whether the obesity or the aggravation of obesity as a result of service-connected PCOS was a substantial factor in causing diabetes; and (iii) whether the diabetes would not have occurred but for the obesity caused by service-connected PCOS or the obesity aggravated by service-connected PCOS. The Board appreciates the examiner's patience in addressing this multistep question. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.V. Palatt, 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.