Citation Nr: 21068304 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 16-53 927 DATE: November 9, 2021 ORDER Entitlement to service connection for migraine headaches is granted. Entitlement to service connection for lumbar joint arthropathy is granted. Entitlement to service connection for abdominal disability is granted. Entitlement to service connection for gynecological disability, diagnosed as endometriosis, and menometrorrhagia (claimed as amenorrhea) is denied. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's current headache disability is related to service. 2. The evidence is at least evenly balanced as to whether the Veteran's current lumbar joint arthropathy is related to service. 3. The evidence is at least evenly balanced as to whether the Veteran's current abdominal disability is related to service. 4. The Veteran's gynecological disability is not related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for lumbar joint arthropathy have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for abdominal disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a gynecological disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2003 to March 2007. This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which, inter alia, denied service connection for headaches, mild joint arthropathy in lower lumbar area, abdominal pain, and menometrorrhagia disabilities. The Veteran disagreed with the RO's determination, and a Statement of the Case was issued in August 2016 addressing the matter. The Veteran timely appealed. In July 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record on appeal. A claim should not be limited to the disorder as characterized by the Veteran but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). Given the multiple gynecological symptoms and diagnoses in this case, the Board has recharacterized the menometrorrhagia claim more broadly. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Moreover, a diagnosis is not required to meet the current disability requirement and pain alone can constitute disability if it causes impairment in earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018). 1. Migraine Headaches The Veteran contends that her migraine headache is due to her military service. In an alternative theory, she contends that her migraine headache is secondary to service-connected mild dry eye disability. For the following reasons, service connection for migraine headaches is warranted on a direct basis. In this case, the evidence of record demonstrates that the requirement of a current disability has been met. Specifically, a November 2016 VA clinical record shows a diagnosis of migraine headaches. With respect to the issue service incurrence, service treatment records (STRs) show multiple complaints and treatment for headaches in December 2003, February 2004, March 2006, and January 2007. In her September 2015 Notice of Disagreement (NOD), the Veteran reported that her migraines and headaches started in service and have gotten worse since she left the military. She noted that she is going to a neurologist and is currently on treatment for them. In her October 2016 substantive appeal (VA Form 9), the Veteran asserted that she did not have a headache condition prior to service and has experience symptoms since service. At her July 2021 Board hearing, the Veteran testified that her headaches started in basic training and has continued since service. The evidence contained in the STRs, in addition to the Veteran's competent and credible statements, are sufficient to meet the second element of the service connection claim. The next issue is whether the third element of a nexus has been met. In a June 2015 VA examination report, the examiner opined that the Veteran's headache disability less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran's STRs do not document a chronic on-going treatment or condition for headaches. The examiner further explained that the Veteran was seen occasionally for temporary headaches in association with pregnancy and in association with corneal difficulties, but there was not chronic on-going treatment or condition for headaches. The June 2015 VA opinion that the Veteran's headache disability is not related to service is of little, if any, probative value, because the examiner failed to consider competent and credible evidence of the Veteran's report of the onset of her headache symptoms in service, and the continuation of those symptoms in the years since service. Dalton v. Peake, 21 Vet. App. 23 (2007). At this point, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). The current diagnosis, STRs, the Veteran's competent and credible lay statements of headache symptoms in and since service, are sufficient to establish that the Veteran's headaches disability had its onset in service. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself). For the reasons set forth above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's headaches disability is related service. Thus, resolving reasonable doubt in the Veteran's favor, service connection is warranted for migraine headaches. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As service connection is being granted on a direct basis, consideration of other theories of entitlement is unnecessary. 2. Back In this case, the evidence of record demonstrates that the requirement of a current disability has been met. Specifically, a June 2015 VA examination report shows a diagnosis of mild joint arthropathy in lower lumbar area. With respect to the issue service incurrence, STRs show treatment in November 2004 and December 2004, when the Veteran slipped on ice and fell on her back while one month pregnant. Diagnoses of lumbago and back strain were noted. In February 2005, the Veteran was diagnosed with low back pain. In her September 2015 NOD, the Veteran reported that in service, she fell down about four steps while pregnant with twins, and was immediately rushed to the emergency room (ER), because she went into preterm labor and she also had severe back pain. She noted that the ER, nor any of the doctors would do x-rays, CT scans, or anything of that nature, because she was pregnant, and they could not give anything but ibuprofen for the pain since she was a high risk pregnancy. She asserted that she was not having back pains prior to the fall and has continued to experience back pain since service. See also July 2021 Hearing Transcript. The evidence contained in the STRs, in addition to the Veteran's competent and credible statements, are sufficient to meet the second element of the service connection claim. The next issue is whether the third element of a nexus has been met. In a June 2015 VA examination report, the examiner opined that the Veteran's back disability less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that there is no objective evidence of onset of a chronic low back problem in the service. Also, there is no objective evidence of low back injury or trauma in service. The examiner further explained that lumbar complaints in service are etiologically unrelated to the current back condition. The examiner noted that in service, the Veteran complained of low back pain associated with pregnancy and UTI, these are generally transient, self-limited and respond to rest and medication. The examiner further noted that it is estimated that between 50% and 80% of women experience some form of back pain during pregnancy. The degenerative changes seen on imaging is due to natural aging and daily/occupational stresses. In an August 2016 VA examination report, the examiner opined that the Veteran's back disability less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran had acute and transitory back symptoms in service related to acute episode of back strain. These symptoms resolved without evidence of residuals. The examiner further explained there is no evidence of chronic back disability related to the acute back strain in 2004. Mechanical type back pain or lumbosacral strain are episodes of acute back pain associated with specific activities or events which are generally transient, self-limited and respond to rest and medication. The examiner noted that different episodes occur de novo, are caused by different activities at different times, and are not related to nor caused by other prior episodes. In this case, the Board finds the June 2015 and August 2016 VA opinions of no probative value. Specifically, the June 2015 VA opinion is factually inaccurate, as the STRs shows treatment for back injury in November 2014 and December 2014. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (if the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely) (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993)). Additionally, both the June 2015 and August 2016 VA examiners failed to consider the Veteran's competent and credible statements of back symptoms in service and the continuation of symptoms since separation. At this point, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c); Andrews v. McDonough, 34 Vet. App. 216 (2021). The current diagnosis, STRs, the Veteran's competent and credible lay statements of back symptoms in and since service, are sufficient to establish that the Veteran's back disability is related to service. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself). For the reasons set forth above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's back disability is related service. Thus, resolving reasonable doubt in the Veteran's favor, service connection is warranted for mild joint arthropathy in lower lumbar area. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Abdominal In this case, the evidence of record demonstrates that the requirement of a current disability has been met. Specifically, a June 2015 and February 2015 VA clinical records shows diagnosis of abdominal pain. Additionally, at her July 2021 Board hearing, the Veteran reported functional impairment due to abdominal pain. In Saunders, 886 F.3d at 1364-65, the Federal Circuit held that pain alone could constitute disability under 38 U.S.C. § 1110 if it causes impairment. The Veteran's lay statements reflect that there is pain of the abdomen that causes impairment in earning capacity. Consequently, the first element of service connection has been met. With respect to the issue service incurrence, STRs show treatment for abdominal pain in October 2003. In her October 2016 VA Form 9, the Veteran asserted that she did not have abdominal pain prior to service and has experience symptoms since service. At her July 2021 Board hearing, the Veteran testified that her abdominal pain began in service and has continued since service. The evidence contained in the STRs, in addition to the Veteran's competent and credible statements, are sufficient to meet the second element of the service connection claim. The next issue is whether the third element of a nexus has been met. In a June 2015 VA examination report, the examiner noted a normal gynecological exam with no objective evidence of abdominal pain. However, the lack of "objective evidence" in this context is not dispositive, as the relevant statutes and regulations do not require "objective" evidence to establish current disability. English v. Wilkie, 30 Vet. App. 347, 349 (2018) (DC 5257 does not "speak to the type of evidence required and, thus, objective medical evidence [is not] required to establish lateral knee instability under that DC"); Petitti v. McDonald, 27 Vet. App. 415, 427 (2015) (a regulation that "does not speak to the type of evidence required... certainly does not, by its own terms, restrict evidence to 'objective' evidence"); Saunders, 886 F.3d at 1364-65. The Veteran's statements regarding abdominal pain causing impairment is sufficient to meet the current disability requirement in this case. In this case, the STRs, Veteran's competent and credible statements indicating abdominal symptoms in and since service, combined with the current diagnosis, is sufficient to establish that the Veteran's abdominal disability had its onset in service. Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself ); 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). There is no evidence to the contrary. For the reasons set forth above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's diagnosed abdominal disability had its onset in service. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for abdominal disability. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Gynecological The Veteran's STRs are negative of complaints, treatment, or diagnoses of gynecological disabilities. Post-service clinical records show diagnoses of endometriosis and menometrorrhagia. At her July 2021 Board hearing, the Veteran testified that menorrhagia in-service caused abdominal pain and endometriosis. In support of her claim, the Veteran was afforded a VA examination in June 2015. The examiner opined that the Veteran's claimed menometrorrhagia is not caused by any condition diagnosed during her active duty. The examiner explained that the Veteran's active duty record shows that she had been treated for various sexually transmitted diseases, and cervical biopsies for abnormal pap smear. The examiner further explained that there was no diagnosis for ovarian cyst, possible endometrial polyp or menometrorrhagia. The examiner noted the Veteran's had a normal gynecological exam. The examiner further noted she had a history of ovarian cyst-resolved-no objective evidence; history of cervical dysplasia-resolved-normal pap smear in 2015; possible endometrial polyp on endometrial biopsy; and menometrorrhagia-etiology unknown-evaluation in process. In August 2016, the Veteran underwent a VA examination. The examiner opined that the Veteran's endometriosis is less likely as not incurred in or caused by service. The examiner explained that the Veteran underwent laparoscopy in June due to complaint of "heavy vaginal bleeding" (menorrhagia) showing endometriosis. The examiner further explained that the evidence does not reveal endometriosis diagnosis in service. The examiner noted that the Veteran was evaluated and treated in service for various sexually transmitted diseases and abnormal pap smear. The examiner further noted there is no evidence of any complaint, evaluation or treatment for symptoms of menorrhagia throughout her active service. As the June 2015 and August 2016 VA examiners explained the reasons for their conclusions based on an accurate characterization of the evidence, their opinions are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Moreover, there is no contrary medical opinion in the evidence of record. To the extent that the Veteran asserts that a gynecological disability is related to service, she is competent to attest to her observations and the etiology of simple medical matters. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). She is not, however, competent to opine on complex medical matters such as the etiology of gynecological disabilities, which are questions that relate to internal medical process that extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau, 492 F.3d at 1377, n.4 (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer). To the extent that the Veteran's statements are competent, the specific reasoned opinions of the June 2015 and August 2016 VA examiners are of greater probative weight than the Veteran's more general lay assertions. For the foregoing reasons, the weight of the evidence reflects that the Veteran's gynecological disability is not related to active service. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, 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.