Citation Nr: 21065582 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-43 307 DATE: October 26, 2021 ORDER Entitlement to service connection for a thoracolumbar spine disability is granted. REMANDED Entitlement to service connection for anemia is remanded. Entitlement to service connection for migraines/headaches is remanded. Entitlement to an initial rating in excess of 10 percent for polycystic ovarian syndrome (PCOS), to include the symptom of follicular ovarian cysts is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the Veteran has experienced back pain related to her thoracolumbar spine disability since her separation from service. CONCLUSION OF LAW The criteria for entitlement to service connection for a thoracolumbar spine disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the Navy from August 1997 to February 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims were previously remanded by the Board in October 2019 for further development. The Board finds that its prior directives were not substantially complied with and as will be discussed further, an additional remand is necessary. A remand by the Board confers on the Veteran or other claimant, as a matter of law, the right to substantial, but not strict, compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). Although the Board has found that the RO has not substantially complied with the October 2019 Board remand directives, there is no prejudice to the Veteran with respect to her claim for a thoracolumbar disability, as the Board has granted service connection herein. Bernard v. Brown, 4 Vet. App. 384 (1993). Entitlement to service connection for a thoracolumbar spine disability The Veteran contends that she has had consistent and ongoing back pain since her service, and she believes that her back condition began while she was in service. Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 C.F.R. § 3.303. To that end, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active duty service. 38 C.F.R. § 3.303 (d). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran has a current diagnosis of degenerative disc disease of the lumbosacral spine as evidenced by the June 2021 VA examination. Degenerative disc disease is an enumerated condition under 38 C.F.R. § 3.309 (a); Walker, 708 F.3d 1331. Accordingly, the Veteran meets the first requirement for service connection. Service treatment records show the Veteran complained of symptoms of back pain for over 30 days in September 1998, during active service. She was assessed with lumbar strain and musculoskeletal pain. In August 1999, a psychological evaluation noted that she was referred for an evaluation after complaining of back pain to a medical officer. An October 2012 note included in the Veteran's post-service VA treatment records shows that she continued to complain of low back pain on and off. Although the Veteran's post-service treatment records do not contain multiple notations for complaints of and/or treatment for back pain, the Board finds that the Veteran continued to experience the same symptoms after her separation from service. In a February 2021 statement, the Veteran stated that her back pain has persisted throughout her adult life and has been chronic. She further stated that she did not have health insurance after her separation from service, so she was unable to consistently treat her back condition and used over-the-counter medications. The Board finds that the Veteran's statements are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record, showing that these symptoms were attributable to her degenerative disc disease of the lumbar spine. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). Moreover, the June 2021 VA examiner opined that the Veteran's claimed thoracolumbar spine disability was at least as likely as not incurred in or caused by the claimed in-service, injury, event, or illness. The rationale provided was that the Veteran did not have any issues related to low back strain prior to military service and her current diagnosis of degenerative disc disease is related to low back strain while in service. The examiner found that there is evidence of chronicity as the Veteran's service treatment records show that she complained of low back pain for 30 days in August 1998 and her post discharge medical records in October 2012 document that she continued to have low back pain on and off. The examiner opined that this is evidence to support association and chronicity. Thus, the Board finds that continuity of symptomatology is established. The Board acknowledges a VA examiner opined in June 2017 that the Veteran's back condition is less likely than not incurred in or caused by service. The examiner explained that the Veteran had an isolated incident while in the military where she suffered low back strain in 1998 and found the episode was acute and transient without persistent or recurrent sequelae. And in December 2020, another VA examiner opined that the claimed back condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness based on a finding that the Veteran's record is silent for chronicity. When considering the June 2017, December 2020, and June 2021 VA examination, the Board finds that the evidence is in relative equipoise as to whether the Veteran's back pain experienced in service is related to her current thoracolumbar disability. Thus, resolving all doubt in the Veteran's favor, entitlement to service connection for a thoracolumbar spine disability is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to decide on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For the reasons described below, the Board finds that the RO has not substantially complied with the prior directives included in the October 2019 Board remand, and a remand is necessary. See Stegall, 11 Vet. App. at 271. Additionally, in the October 2019 Board remand, the Board directed the RO to make reasonable efforts to obtain the Veteran's complete service treatment records. In February 2020 email correspondence, the RO requested the Veteran's service treatment records; however, the claims file does not include a response to the February 2020 email. Furthermore, in February 2021 correspondence, the Veteran stated that she visited multiple military medical facilities during active service, to include the Admiral Boone Health Clinic on Little Creek Naval Base, the NAVSTA Health Clinic, and the Portsmouth Naval Hospital. The Board finds that a remand is necessary to locate and obtain these service treatment records. 1. Entitlement to service connection for anemia is remanded. The Veteran contends that she has a diagnosis of anemia that is related to her service-connected PCOS. An August 1999 psychiatric clinic notes in the Veteran's service treatment records indicates that she was diagnosed with anemia in service. In March 2009, the Veteran was discharged from an emergency room visit with a diagnosis of anemia without transfusion. In June 2017, a VA examiner opined that the Veteran's claimed anemia is less likely than not proximately due to her PCOS as there is no established diagnosis of anemia. However, the examiner indicated that the Veteran was not available to be interviewed or examined prior to rendering his opinion. Therefore, the Board finds that a remand is necessary for a VA examination to determine if the Veteran has a diagnosis of anemia that is proximately due to or aggravated beyond natural progression by the Veteran's service-connected PCOS. 2. Entitlement to service connection for migraines/headaches is remanded. The Veteran contends that her migraine/headaches are related to her service-connected PCOS, hypertension, obstructive sleep apnea, major depressive disorder with borderline personality disorder, or the medications she takes for her major depressive disorder with borderline personality disorder. In December 2020, a VA examiner offered a negative nexus opinion as to whether the Veteran's headaches were proximately due to or aggravated by her service-connected PCOS, major depressive disorder, or hypertension. However, the Board finds that the December 2020 VA examiner failed to offer an adequate rationale for opining that her migraines and headaches were not aggravated beyond natural progression by her service-connected disabilities. Thus, the Board finds that an addendum medical opinion is necessary. Additionally, when offering a negative nexus opinion as to the Veteran's migraines and headaches and hypertension, the December 2020 VA examiner stated that "increased blood pressure causes headaches because of the increased intra-arterial pressure the blood vessels are dilated resulting to headache but does not result to migraine." In the December 2020 Disability and Benefits Questionnaire, the examiner diagnosed the Veteran with migraines and further stated that the Veteran has daily headaches and weekly migraines. Thus, the Board finds that clarification is needed to determine whether the Veteran is diagnosed with headaches that are at least as likely as not proximately to or the result of the Veteran's service-connected hypertension. Finally, in February 2021 correspondence, the Veteran contended that her migraines/headaches are secondary to her service-connected obstructive sleep apnea or her medications for her major depressive disorder with borderline personality disorder. The Board cannot make a fully-informed decision because no VA examiner has opined whether the Veteran's migraines and headaches are related to these conditions. Thus, the Board finds that an addendum VA medical opinion is necessary. 3. Entitlement to an initial rating in excess of 10 percent for PCOS, to include the symptom of follicular ovarian cysts is remanded. The Veteran contends that her PCOS symptoms are not controlled by continuous treatment, and thus is entitled to a rating of at least 30 percent. The Veteran was afforded a VA examination for her PCOS in December 2020. However, the October 2019 Board remand explicitly asked the VA examiner to opine as to whether it is at least as likely as not that (1) the Veteran has cardiovascular signs or symptoms of PCOS; (2) the Veteran continued to have follicular cysts while on oral contraceptives; (3) the Veteran's pelvic pain associated with PCOS is NOT controlled by continuous medication. These opinions were not addressed by the December 2020 VA examiner; thus, the Board finds that an addendum medical opinion is necessary. Furthermore, the Board notes the Veteran underwent a gynecological VA examination to evaluate her PCOS. However, the Veteran's VA treatment records indicate that the Veteran's disability is an endocrine condition the affects the full body. Therefore, the Board finds that the Veteran should be afforded an endocrine VA examination in addition to a gynecological VA examination to thoroughly evaluate her PCOS symptoms. The matters are REMANDED for the following actions: 1. Obtain the Veteran's complete service treatment records from August 1997 to February 2001, to include records from the following Naval medical facilities: Admiral Boone Health Clinic on Little Creek Naval Base, the NAVSTA Health Clinic, and the Portsmouth Naval Hospital. All efforts to obtain the records should be clearly documented in the file. If records are unavailable, a memorandum documenting their unavailability should be associated with the Veteran's file. 2. After completion of the above-referenced directives, schedule the Veteran for a VA examination with an appropriate clinician for her claimed anemia. The examiner must review the claims file. The examiner is asked to determine whether the Veteran has a diagnosis of anemia or has been diagnosed with anemia at any time during the pendency of the appeal. If the Veteran has a diagnosis of anemia, the examiner is asked to opine whether it is at least as likely as not (1) proximately due to her service-connected PCOS; or (2) aggravated, i.e., worsened beyond its natural progression, by her service-connected PCOS. Any opinion expressed should be accompanied by a complete rationale. 3. Schedule the Veteran for a VA examination with an appropriate clinician of her claimed migraines/headaches. The examiner must review the claims file. The examiner is asked to determine whether the Veteran has a diagnosis of migraines, headaches, or both. The examiner is asked to opine whether her migraines and/or headaches are at least as likely as not (1) proximately due to her service-connected PCOS, hypertension, obstructive sleep apnea, major depressive disorder with borderline personality disorder, and/or the medications taken for major depressive disorder with borderline personality disorder; or (2) aggravated, i.e., worsened beyond its natural progression, by her service-connected PCOS hypertension, obstructive sleep apnea, major depressive disorder with borderline personality disorder, and/or the medications taken for major depressive disorder with borderline personality disorder. The examiner is also asked to offer a clarifying opinion as to the December 2020 VA examiner's opinion that "increased blood pressure causes headaches because of the increased intra-arterial pressure the blood vessels are dilated resulting to headache but does not result to migraine." The examiner must address whether the Veteran is diagnosed with headaches that are at least as likely as not proximately to or the result of her service-connected hypertension. Any opinion expressed should be accompanied by a complete rationale. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected PCOS. The Veteran must be scheduled for both an Endocrine examination and a Gynecological examination. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must offer the following opinions: (a) Whether it is at least as likely as not that the Veteran has cardiovascular signs or symptoms of PCOS. If so, please schedule the Veteran for a cardiovascular examination. (b) Whether it is at least as likely as not that the Veteran continues to have follicular cysts while on oral contraceptives. (c) Whether it is at least as likely as not that the Veteran's pelvic pain associated with PCOS is NOT controlled by continuous medication (including medication to manage pain). Any opinion expressed should be accompanied by a complete rationale. 5. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hartford, 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.