Citation Nr: 21064139 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 06-28 161A DATE: October 19, 2021 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for headaches is granted. Service connection for headaches is denied. Service connection for a chronic disability manifested by menstrual problems and blackouts, diagnosed as postmenopausal uterine bleeding, is denied. Service connection for pulmonary embolism is denied. Compensation under 38 U.S.C. § 1151 for pulmonary embolism (claimed as blood clots) is denied. REMANDED Entitlement to a disability rating in excess of 30 percent for right foot pes planus is remanded. Entitlement to a disability rating in excess of 60 percent for asthma is remanded. FINDINGS OF FACT 1. A final January 2009 rating decision denied service connection for headaches; newly received evidence raises a reasonable possibility of substantiating the claim. 2. Headaches are not attributable to an undiagnosed illness or diagnosed medically unexplained chronic multisymptom illness; were not incurred in, or are otherwise etiologically related to, the Veteran's active service; and are not caused or aggravated by service-connected tinnitus or psychiatric disabilities. 3. Menstrual problems and blackouts are not attributable to an undiagnosed illness or diagnosed medically unexplained chronic multisymptom illness. 4. Pulmonary embolism is not attributable to an undiagnosed illness or diagnosed medically unexplained chronic multisymptom illness; nor is this disorder aggravated by, proximately due to, or the result of a service-connected disease or injury. 5. The Veteran's pulmonary embolism is not due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing treatment, including the prescription of birth control pills absent informed consent. CONCLUSIONS OF LAW 1. Evidence received to reopen the claim of entitlement to service connection for headaches is new and material and the claim is reopened. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The criteria for service connection for headaches have not been met. 38 U.S.C. §§ 1131, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317. 3. The criteria for service connection for a chronic disability manifested by menstrual problems and blackouts, diagnosed as postmenopausal uterine bleeding, have not been met. 38 U.S.C. §§ 1131, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317. 4. The criteria for service connection for pulmonary embolism have not been met. 38 U.S.C. §§ 1131, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.317. 5. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for pulmonary embolism (claimed as blood clots) as a result of VA medical treatment have not been met. 38 U.S.C. § 1151, 5103, 5107; 38 C.F.R. §§ 3.159, 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1980 to April 1983, October 1990 to July 1991, and January 2004 to December 2004, with additional reserve service and foreign service in Southwest Asia. For her meritorious service, the Veteran was awarded (among other decorations) the Army Achievement Medal, Southwest Asia Service Medal with three Bronze Service Stars, and Kuwait Liberation Medal. This appeal has an extremely prolonged procedural history. Most recently, these matters were remanded by the Board in March 2021 for additional development which has since been completed, to include the provision of a Supplemental Statement of the Case (SSOC), obtainment of VA and private treatment records, and scheduling of a new VA foot examination. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Also in March 2021, the Board remanded a claim seeking a separate compensable rating for gastroesophageal reflux disease (GERD). A May 2021 rating decision awarded such a rating on the basis of a clear and unmistakable error (CUE), with an effective date of September 23, 2010, assigned. This represents a full grant of the benefit being sought on appeal, such that this matter is no longer for the Board's consideration. New and Material Evidence First, the Veteran seeks to reopen a service connection claim for headaches on the basis of new and material evidence. VA may reopen a claim for service connection which has been previously and finally disallowed when new and material evidence has been presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this regard, "new evidence" means existing evidence not previously submitted to VA. "Material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Taken in combination, new and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New evidence may be sufficient to reopen a claim if it can contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Thus, the Board must first determine whether new and material evidence has been submitted under 38 C.F.R. § 3.156(a) to have a claim reopened under 38 U.S.C. § 5108. Elkins v. West, 12 Vet. App. 209 (1999). Then the Board may proceed to evaluate the merits of the claim after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record. Historically, service connection for headaches was denied in January 2009 rating decision. The Veteran did not perfect an appeal as to this matter or submit documentation constituting new and material evidence within the appropriate appeal period, such that the January 2009 rating decision became final. Rather, the Veteran requested to reopen the claim in September 2014. Her request may be granted upon a finding that new and material evidence has been received since the final January 2009 rating decision. A positive finding is offered in this case. Compellingly, the January 2009 rating decision denied service connection upon the Regional Office's (RO's) determination that the Veteran's headaches were not secondary to her service-connected tinnitus. Subsequently, the Veteran has raised multiple other theories for consideration, including that her headaches had their onset during service; are attributable to an undiagnosed illness or a medically unexplained chronic multisymptom illness per 38 C.F.R. § 3.317; or are secondary to pulmonary emboli (for which entitlement to service connection will be assessed herein) or her service-connected psychiatric disorder. See, e.g., August 2015 VA examinations; December 2015 Notice of Disagreement (NOD); October 2020 representative's memorandum. Given the Veteran's competency to testify as to the nature and onset of her symptoms, particularly in relation to her military service, the Board finds that this new evidence raises a reasonable possibility of substantiating the claim. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Upon a finding of new and material evidence, the application to reopen the service connection claim for headaches is hereby granted. Service Connection Next, the Veteran is pursuing service connection for the following disabilities: 1. Headaches (to include as attributable to an undiagnosed illness or a medically unexplained chronic multisymptom illness per 38 C.F.R. § 3.317; directly related to service; or secondary to nonservice-connected pulmonary emboli or a service-connected psychiatric disability); 2. A chronic disability manifested by menstrual problems and blackouts (to include as attributable to an undiagnosed illness or a medically unexplained chronic multisymptom illness per 38 C.F.R. § 3.317); and 2. Pulmonary emboli (to include as attributable to an undiagnosed illness or a medically unexplained chronic multisymptom illness per 38 C.F.R. § 3.317; or as secondary to a chronic disability manifested by menstrual problems and blackouts). As these appeals require similar analyses, they will be addressed simultaneously herein. The Board's analysis will be limited to those theories of entitlement as identified above. As an initial matter, the Veteran had service in Southwest Asia from November 1990 to June 1991. 38 C.F.R. § 3.317. Accordingly, the threshold question here is whether the Veteran's symptoms of headaches, menstrual problems/blackouts, and pulmonary emboli (shown by a history of blood clots) are attributable to an undiagnosed illness or diagnosed medically unexplained chronic multisymptom illness for which presumptive service connection would apply. Id. A negative finding is offered at this time. Notably, an August 2015 VA examiner diagnosed the Veteran with tension headaches, and a June 2016 VA examiner attributed her remaining symptoms to specific diagnoses of postmenopausal uterine bleeding and pulmonary embolism (resolved). The latter examiner also concluded that the Veteran did not present with any diagnosed illnesses for which no etiology is established, nor additional signs or symptoms which may represent an undiagnosed illness or diagnosed medically unexplained chronic multisymptom illness. Compellingly, there are no contradictory findings in the Veteran's extensive VA or private treatment records; instead, the full scope of her reported symptoms has been clearly and unequivocally attributed to definitive medical diagnoses, as set forth above. Accordingly, the Veteran does not show an undiagnosed illness or diagnosed medically unexplained chronic multisymptom illness for which presumptive service connection might apply. Despite her assertions to the contrary, the Veteran lacks the medical training and expertise to offer a competent opinion as to complex medical matters, including the diagnoses and etiologies relevant to her perceptible symptoms. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Layno, 6 Vet. App. at 469. Thus, the appeals do not succeed on a presumptive basis. 38 C.F.R. § 3.317. Nonetheless, the record clearly shows current disabilities for which direct or secondary service connection may be warranted. Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be warranted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Here, the Veteran first argues that her headaches onset during service. See October 2020 representative's memorandum. There is conflicting evidence in this respect. Notably, the claims file contains a September 1998 service treatment record (STR) wherein the Veteran reported a history of frequent or severe headaches. However, she denied such a history during all other in-service evaluations, to include a December 2003 entrance examination for her final period of active duty. While an exit examination for this same period is not of record, STRs through June 2004 are otherwise silent for symptoms, diagnoses, or treatment relevant to the claimed headache condition. Rather, the Veteran did not report a chronic headache condition until a July 2008 lay statement, as reiterated during an accompanying September 2008 neurological evaluation. However, she repeatedly denied such a history in contemporaneous VA and private treatment records, and instead identified a March 2015 onset of her condition during August 2015 VA examination. Given the frequent disparities in her reporting, the Veteran is not found to be a credible historian with respect to the onset of her headache disability. Miller v. Wilkie, 32 Vet. App. 249 (2020); see also December 2011 VA treatment record (assessing the Veteran for headaches and noting that she is a "poor historian"). Thus, medical records or opinions based solely on her testimony are not probative on this point. Rather, the earliest recordation of a possible headache diagnosis, as offered by a medical professional upon contemporaneous evaluation of the Veteran, occurs in 2011, several years after her military discharge. See December 2011 VA treatment record. Accordingly, the evidence weights against the finding of an in-service injury or event with respect to the pending headache appeal. The second element of direct service connection is not met, and the appeal fails on this theory of entitlement. In the interest of clarity, neither the Veteran nor her representative have offered evidence or argument that her menstrual problems or pulmonary embolism are directly related to service, and her STRs are silent for any symptoms, diagnoses, or treatment of such. But see June 1999 private treatment record (noting dysfunctional uterine bleeding during a period of non-service). Upon the absence of such evidence or argument, further analysis into the second element of direct service connection is not warranted for these appeals. Such a finding is dispositive with respect to these claims, as the Veteran has not argued that service connection for her menstrual problems is warranted on any other basis than that afforded under 38 C.F.R. § 3.317. Thus, service connection for such a disability is denied. See also June 2016 VA opinion (finding no evidence that the Veteran's postmenopausal dysfunctional uterine bleeding is due to, or the result of, anything she may have encountered during her service in the Gulf War). The Veteran has separately argued that her pulmonary embolism is secondary to her menstrual problems, and that her headaches are secondary to her pulmonary embolism. As service connection is not warranted for the underlying conditions, these appeals also fail on secondary bases. 38 C.F.R. § 3.310. The remaining theory of entitlement for consideration is that the Veteran's headaches are secondarily related to her service-connected tinnitus or psychiatric disability. (Although the Veteran has also associated her headaches with her pulmonary embolism, service connection for the latter has been denied herein and thus this theory of entitlement consequentially fails). With respect to the claimed link between headaches and tinnitus, a September 2008VA examiner reported that all relevant evidence had been reviewed in providing the requested opinion. Of note, a November 2007 treatment record documented that hearing loss and tinnitus had worsened over the last few years. However, there were no prior entries concerning treatment for headaches prior to this date and in September 2008, a review of systems denied a history of headaches. The examiner noted that cases of loud, severe tinnitus can easily cause headaches. However, this Veteran's records did not show any documentation of such, other than worsening hearing loss and tinnitus over the past year. As there was no specific treatment for headaches, nor did a review of systems yield such a history, the examiner opined that it would be resorting to speculation to conclude that the Veteran's headaches are due to her tinnitus. This opinion was offered because there was no quantitative or qualitative method to determine whether headaches are actually due to tinnitus. Rather, this is a subjective finding that is reported. Thus, there is no way for the examiner to measure or determine such a relationship, "other than by questioning." However, there were no such entries to support this. Additionally, aggravation issues cannot be determined. The Veteran shows other medical and mental health comorbidities, which can easily play into chronic headaches. As to the claimed link between headaches and a psychiatric disability, a September 2015 examiner noted that the Veteran did show a diagnosis of tension headaches that first became an issue in March 2015. It was also noted that these headaches can be brought about with various stressors. However, it was less likely than not that the Veteran's tension headaches were due solely to her service-connected psychiatric disability. Rather, it would appear that the Veteran's headaches are independent of her psychiatric disability. Although flareups or anxiety may be accompanied by headaches, her headache condition is likely an independent condition. The above opinions are probative evidence against the appeal. Collectively, the examiners assessed all remaining theories of entitlement as presented by the Veteran; engaged in a thorough and thoughtful review of her medical records and lay testimony; and considered the identifiable intersections between the non- and service-connected conditions, with respect to both causality and aggravation. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the "factually accurate, fully articulated, sound reasoning for the conclusion"). There is no indication that either examiner was not fully aware of the Veteran's past medical history or misstated any relevant fact in formulating the negative nexus opinions. Moreover, they each possess the requisite expertise to render a competent opinion as to complex medical matters, to include the etiology of the Veteran's headaches. Insofar as the September 2008 examiner concluded that a more definitive opinion would require speculation, the competency of this opinion remains intact, as the examiner clearly indicated that their opinion reflected the limitations of the medical community at large and afforded all due consideration to the specific evidence of this case. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Additionally, the Board acknowledges that the September 2015 opinion does not specifically use the word "aggravation." See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). However, it is apparent that the examiner contemplated this potential causal relationship in providing their opinion, as the accompanying report clearly identifies the opinion being requested. There is also no evidence that the examiner relied on an incorrect standard for aggravation in providing the negative opinion. Ward v. Wilkie, 31 Vet. App. 233, 240 (2019). Thus, the only positive opinion of record is that offered by the Veteran. As previously stated, she lacks the knowledge and expertise to offer a competent opinion on complex medical matters, to include any causal relationships between her comorbid conditions. Kahana, 24 Vet. App. at 428; Jandreau, 492 F.3d at 1376-77. Moreover, the Board notes the frequent inconsistencies in the Veteran's testimony with respect to her medical history, to include any perceptible relationship between her coexisting symptoms. Miller, 32 Vet. App. at 249. Thus, greater probative value is afforded to the objective, expert medical evidence in this case, which supports a denial of the appeal. For the reasons set forth herein, the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule is inapplicable, and the appeals seeking service connection for headaches, menstrual problems/blackouts, and pulmonary emboli are hereby denied. § 1151 The Veteran also seeks compensation benefits under 38 U.S.C. § 1151 for her pulmonary embolism, which she contends resulted from VA-prescribed birth control pills used to treat her menstrual bleeding. See, e.g., April 2016 lay statement. Under 38 U.S.C. § 1151, compensation may be paid for a qualifying additional disability or qualifying death from VA treatment or vocational rehabilitation as if the additional disability or death were service-connected. In order for a claimant to be eligible for compensation under 38 U.S.C. § 1151 due to VA treatment, the evidence must establish that he sustained additional disability and that this additional disability is etiologically linked to the VA treatment by the appropriate standard under 38 U.S.C. § 1151. If there is no competent evidence of additional disability or no evidence of a nexus between the hospitalization, medical or surgical treatment, or examination and the additional disability or death of the veteran, the claim for compensation under 38 U.S.C. § 1151 must be denied. In determining whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after such care or treatment. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). An additional disability or death caused by the veteran's failure to follow medical instructions will not be deemed to be caused by hospital care, medical or surgical treatment or examination. 38 C.F.R. § 3.361(c)(3). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability or death; and either (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. 38 C.F.R. § 3.361(d)(1). Here, the evidence clearly establishes that the Veteran incurred additional disability due to VA treatment. As per an August 2016 VA examiner, the Veteran sought VA treatment in 2015 for excessive vaginal bleeding. She was placed on a tapering birth control dosage to assist with managing her symptoms. She continued to show bleeding, cramps, and abdominal pains. In anticipation of a surgical intervention, "hormonal therapy was attempted." Subsequent to these treatments, the Veteran presented with shortness of breath and chest tightness. A bilateral pulmonary embolism was diagnosed, and she was admitted and treated. Current medical literature "makes clear mention of an increase in deep vein thrombosis and emboli in patients using birth control." In this specific case, an attempt was made to help the Veteran with her excessive bleeding but "unfortunately, she eventually suffered from a pulmonary embolism." See also November 2015 VA treatment record (diagnosing pulmonary embolism with "recent exposure to estrogen"); June 2016 VA examination ("it is at least as likely as not that the Veteran's menstrual issues requiring oral contraceptive pills did lead to the development of blood clots, causing pulmonary emboli in this Veteran"). Thus, these criteria for compensation under § 1151 have been met. However, the evidence does not show that either VA failed to exercise a reasonable degree of care, or furnished treatment without informed consent, in this specific case. As to the first inquiry, the August 2016 examiner observed that pulmonary embolism is a known complication of oral contraceptive use: "Unfortunately, it cannot be predicted in each case, but is known to occur." However, VA timely diagnosed the Veteran's condition and made "valiant" attempts to assist her with her worsening gynecological complaints. Thus, there was no failure to timely diagnose or treat this issue, and no evidence of carelessness, negligence, lack of proper skill, error in judgment, or other similar instance of fault on the part of VA was found. As to the second inquiry, an October 2015 VA treatment record indicates that the Veteran was seeking treatment for her excessive bleeding at that time. Following discussion with another examiner, the Veteran's treatment provider prescribed a medium strength birth control pill. An addendum shows that the Veteran was contacted to discuss the doctor's recommendations, and her relevant medical history was recorded at that time. Following this conversation, the Veteran consented to the use of birth control pills. The claims file also contains two information sheets which were provided to the Veteran at that time: one which addresses the use and risks of progestin/estrogen oral contraceptive pills, and one which specifically addresses the use and risks of Reclipsen, as prescribed to the Veteran. The latter form clearly discusses the risk of pulmonary embolism due to this medication usage, with supporting data and citations. Thereafter, the Veteran was prescribed, and used, the identified birth control pill. Thus, the claims file clearly shows that the Veteran consulted with her VA treatment provider regarding the use of birth control pills to manage her menstrual bleeding; that her treatment provider clearly considered the Veteran's unique medical history in prescribing this course of action; that the Veteran had ample opportunity to discuss the known risk factors with her VA doctor and to ask any questions relevant thereto; and that the Veteran was provided with two written statements addressing the general risks of birth control pills and the specific risks involved with the use of Reclipsen, including possible pulmonary embolisms. See McNair v. Shinseki, 25 Vet. App. 98, 104 (2011) (holding that whether a patient was advised of the risks of medical care is a factual determination to be made by the Board). In sum, the probative evidence does not establish that the Veteran's pulmonary embolism was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing treatment. Rather, the use of birth control pills to treat the Veteran's menstrual bleeding was well within the standard of medical care at that time, and the Veteran offered informed consent following both verbal and written consultation regarding any possible risks. Despite the Veteran's contentions otherwise, she lacks the medical competence to offer an opinion on such complex matters as the appropriate standard of care. The appeal is hereby denied. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of the increased rating appeals. In an August 2021 memorandum, the Veteran's representative memorialized her testimony that her service-connected asthma and right foot disabilities had worsened in severity since their most recent evaluations. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). Thus, new examinations are required. The matters are REMANDED for the following action: Schedule the Veteran for a VA examinations to assess the current severity of her service-connected asthma and right foot pes planus. The claims folder must be provided to the examiner in conjunction with the examination. All necessary tests and studies should be conducted. The asthma examiner should offer an assessment of all pertinent symptomatology and findings, to be reported in detail in accordance with Diagnostic Code 6602. The foot examiner should offer an assessment of all pertinent symptomatology and findings, to be reported in detail in accordance with Diagnostic Code 5299-5276. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.