Citation Nr: 21061818 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-17 246 DATE: October 5, 2021 ORDER Service connection for a low back disability is granted. Service connection for a right ankle disability is granted. Service connection for a left ankle disability is granted. Service connection for migraine headaches is granted. Service connection for a left wrist disability is granted. Service connection for a left foot disability is granted. Service connection for a right foot disability is granted. Service connection for anemia is granted. REMANDED Service connection for amenorrhea is remanded. Service connection for dysplasia is remanded. Service connection for a stomach condition, to include IBS, is remanded. Service connection for acid reflux, to include GERD, is remanded. FINDINGS OF FACT 1. The Veteran's low back disability had its onset in service. 2. The Veteran's right ankle disability had its onset in service. 3. The Veteran's left ankle disability had its onset in service. 4. The Veteran's migraine headaches had its onset in service. 5. The Veteran's left wrist disability had its onset in service. 6. The Veteran's left foot disability had its onset in service. 7. The Veteran's right foot disability had its onset in service. 8. The Veteran's anemia had its onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right ankle disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left ankle disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for migraine headaches have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a left wrist disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for a left foot disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for service connection for a right foot disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 8. The criteria for service connection for anemia have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1978 to August 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2015 and September 2015 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran appeared at a hearing before a Veterans Law Judge; however, a written transcript of the proceeding could not be produced due to technical difficulties encountered in the Digital Audio Recording System. In April 2021, VA notified the Veteran of the audio malfunction and informed her of an opportunity to testify at another hearing. The Veteran responded and requested another hearing before a VLJ. The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in July 2021. Normally, when two different VLJs hold hearings on the same case, the Veteran is afforded a panel hearing. However, where, as here, a second hearing is held because the original hearing was not recorded in whole or in part due to equipment failure or other cause, a panel hearing is not necessary. See 38 C.F.R. § 20.717 (2016); see also Chairman's Memorandum 01-11-10. Instead, the original hearing is treated as if it did not exist, and only the VLJ who presided over the second hearing will decide the claim. Service Connection To establish service connection for a claimed disorder, the following criteria must be met: (1) medical evidence of a current disability; (2) evidence of an 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 current disability. 38 C.F.R. § 3.303; see also, Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active-duty military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Even in the absence of a diagnosed disability, evidence of functional limitations due to symptoms can meet this requirement. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Specifically, in Saunders v. Wilkie, the Federal Circuit found that the term "disability," as used in 38 U.S.C. § 1110, refers to the functional impairment of earning capacity, not the underlying cause of said disability, and held that pain alone can serve as a functional impairment and therefore qualify as a disability. 1. Service connection for a low back disability. 2. Service connection for a right ankle disability. 3. Service connection for a left ankle disability. 4. Service connection for migraine headaches. 5. Service connection for a left wrist disability. 6. Service connection for a left foot disability. 7. Service connection for a right foot disability. 8. Service connection for anemia. The Veteran seeks service connection for a right and left ankle disability, low back disability, left and right foot disability, left wrist disability, anemia, and migraine headaches, which she contends began in service and have been recurrent since that time. See Hearing Testimony, July 2021. All three elements of service connection are established by the competent and credible lay and medical evidence of record. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran has a diagnosis of tendonitis in both ankles, degenerative arthritis of the spine, flat foot in both feet, anemia, and migraine headaches. See VA Examinations, April 2015 and September 2015. Regarding the Veteran's left wrist disability, the evidence shows that the Veteran experiences symptoms of swelling and numbness and cannot hold objects in her left hand. The April 2015 VA examiner noted that the Veteran's condition causes functional impact as her left hand will shake causing her to be unable to type. Given the functional impairment imposed by the Veteran's left wrist condition, the requirement for service connection that a current disability be present is satisfied. See Saunders, 886 F.3d at 1356. During the July 2021 hearing, the Veteran testified that she did not have physical problems prior to service. She stated that during basic training, she fell and hurt her right ankle and was given medication and ice and wore an ankle brace. The Veteran further testified that she has experienced headaches, back problems, left wrist problems, and right and left foot problems since service. The Veteran also noted that she was diagnosed with anemia in service and was given medication. The Veteran reported that she was told anemia is common with pregnancy, but she testified that her anemia continued after her pregnancy. Thus, the first two criteria have been met. Further, the competent and credible evidence of record shows that her current right and left ankle disability, low back disability, left and right foot disability, left wrist disability, anemia, and migraine headaches began during service and have been recurrent since that time. Treatment records show complaints and treatment for ankle conditions, feet conditions, headaches, low back pain, anemia, and left wrist conditions. See Medical Treatment Records, September 1979, October 1979, January 1980, March 1980, October 1982, August 1983, and June 1984. The Veteran reported that she fell twice in service and injured her back and ankles. She stated that she was seen for her conditions in service and has had pain off and on for many years. See VA Examinations, April 2015 and September 2015. In August 2021, the Veteran's previous spouse submitted a statement noting that he remembers taking the Veteran to the hospital in 1983 for leg problems as the Veteran could barely walk. He stated that the Veteran continued to have health problems while he knew her. The Veteran is competent to report the onset and continuation of her right and left ankle disability, low back disability, left and right foot disability, left wrist disability, anemia, and migraine headaches symptoms and the Board finds her testimony credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes that the April 2015 and September 2015 VA examiner opined that the Veteran's current conditions were not related to service as medical treatment records do not show diagnosis or treatment of the conditions until many years following service. However, the Veteran testified that she received private treatment after service, but the records are no longer available. She also testified that she did not realize she could seek treatment at VA facilities. See Hearing Testimony, July 2021. As the evidence shows that the Veteran's right and left ankle disability, low back disability, left and right foot disability, left wrist disability, anemia, and migraine headache symptoms had their onset in service, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"); see also 38 C.F.R. § 3.303(a) (Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces). REASONS FOR REMAND 1. Service connection for amenorrhea is remanded. 2. Service connection for dysplasia is remanded. The Veteran seeks service connection for amenorrhea and dysplasia. The Veteran's service treatment records show complaints and diagnoses for these conditions. In September 2015, a VA examiner noted that the Veteran has a diagnosis of secondary amenorrhea and cervical dysplasia from 1979. During the examination, the Veteran reported that she had UTIs and irregular periods in service. She also reported abnormal PAP smears, continued irregular periods, and treatment with medication. However, the examiner noted that the Veteran does not have current symptoms related to a gynecological condition and opined that the Veteran's claimed conditions of amenorrhea and dysplasia are less likely than not incurred in or caused by service. The examiner reasoned that the Veteran's post-service treatment records do not show a diagnosis of amenorrhea, the Veteran is currently in menopause, and private medical records show normal PAP smears. During the July 2021 hearing, the Veteran testified that she sought treatment for her conditions after service, but the records are no longer available. She also stated that she did not realize she could seek VA treatment. The Veteran testified that she had a dilation and curettage surgical procedure due to the dysplasia. The Veteran's medical treatment record notes a history of abnormal PAP smear three to four years prior and cryo. See Medical Treatment Records, October 2016. Given the Veteran's testimony and the evidence of record, the Board finds remand necessary to obtain a VA examination that adequately identifies any residual impairment that the Veteran may have from her in-service amenorrhea and dysplasia. 3. Service connection for a stomach condition, to include IBS, is remanded. 4. Service connection for acid reflux, to include GERD, is remanded. The Veteran seeks service connection for a stomach condition, which she contends began in service and has been recurrent since that time. During the July 2021 hearing, the Veteran testified that she experiences heartburn, acid reflux, and severe stomach pains. She stated that she may have a diagnosis of IBS. In April 2015, a VA examiner noted a diagnosis of GERD from February 2005 and mild duodenitis from June 2014. The examiner opined that the Veteran's conditions are less likely than not related to service as they were diagnosed more than 20 years post separation. However, as noted previously, the Veteran testified that she sought treatment for her conditions, but the records are no longer available. Therefore, the Board finds that a VA medical examination and opinion is necessary to determine diagnoses and etiology of the Veteran's stomach condition and acid reflux. The matters are REMANDED for the following action: 1. Obtain all outstanding medical records. 2. Afford the Veteran a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the onset, current nature, and etiology of any residuals of amenorrhea and/or dysplasia, a stomach condition, to include IBS, and acid reflux condition, to include GERD. A diagnosis of IBS and/or GERD must be ruled in or excluded. For any identified impairment or disorder, the examiner should opine whether it is at least as likely as not that the disability had its onset in or is otherwise related to service. In reaching a conclusion, the VA examiner must acknowledge and discuss the lay and medical evidence of record, including the Veteran's testimony regarding seeking treatment after service. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.