Citation Nr: 21069038 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 15-41 119A DATE: November 17, 2021 ORDER Entitlement to service connection for fibromyalgia is granted. Entitlement to service connection for a cervical spine disability is granted. Entitlement to service connection for a scar of the umbilical region is granted. Entitlement to service connection for gastroesophageal reflux disease (GERD) is granted. Entitlement to service connection for a gynecological disability is granted. Entitlement to service connection for vertigo, as secondary to the service-connected migraines, is granted. REMANDED Entitlement to service connection for a hiatal hernia is remanded. Entitlement to service connection for diverticulosis is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, her fibromyalgia is at least as likely as not related to her in-service symptoms. 2. Resolving reasonable doubt in the Veteran's favor, her cervical spine disability is at least as likely as not related to an in-service injury. 3. The Veteran's scar of the umbilical region is related to an in-service surgery. 4. Resolving reasonable doubt in the Veteran's favor, her GERD is at least as likely as not related to her in-service symptoms. 5. Resolving reasonable doubt in the Veteran's favor, her gynecological disability is at least as likely as not related to in-service diseases. 6. The Veteran's vertigo is proximately due to her service-connected migraines. CONCLUSIONS OF LAW 1. The criteria for service connection for fibromyalgia are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a cervical spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a scar of the umbilical region are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for GERD are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a gynecological disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for vertigo as secondary to the service-connected migraines are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February 1987 to February 1990 and from January 1991 to April 1991. These issues are on appeal from a February 2012 rating decision. In December 2018, the Veteran testified before the undersigned Veterans Law Judge at a Board of Veterans' Appeals (Board) hearing. In August 2020, the Board reopened these previously denied claims and remanded them to the Agency of Original Jurisdiction (AOJ) for further development. Subsequent to the October 2020 Supplemental Statement of the Case (SSOC), the AOJ added pertinent medical treatment records to the evidence of the record. This evidence was not reviewed by the AOJ in the first instance. In a September 2021 statement, the Veteran waived her right to have the AOJ review this new evidence in the first instance. SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Entitlement to service connection for fibromyalgia. The Veteran contends that she experienced viral symptoms, fatigue, nausea, and vomiting during service, which were eventually diagnosed as fibromyalgia. See Board hearing transcript, pages 16-17; see also May 2009 Veteran statement. She argued that fibromyalgia was not published as a diagnosis by the American Pain Society until 2005, after the Veteran had been discharged from service. See Board hearing transcript, page 17. The Board concludes that the Veteran has a current disability that is related to in-service symptoms. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The October 2020 VA examination shows the Veteran has a current diagnosis of fibromyalgia. During service, the Veteran was seen for complaints of nausea and vomiting in February 1988. She was diagnosed with viral gastroenteritis resolved. In June 1988, she was again treated for nausea and vomiting. Thus, the question becomes whether the current disability is related to service. On this question, there are probative opinions in favor of and against the claim. The evidence against the claim includes an October 2020 VA medical opinion. Following a physical examination of the Veteran and a review of her claims file, the VA examiner opined that the Veteran's current fibromyalgia is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there are no medical records showing diagnosis, treatment for the fibromyalgia condition, or any related fibromyalgia complaints while the Veteran was still in the service. Furthermore, there is no sign of continuation of symptoms during service and/or after separation from active service. The evidence in favor of the claim includes a May 2020 Independent Medical Evaluation (IME). Following a physical examination of the Veteran and a review of her VA and private medical records, Dr. C.B., a private physician, opined that, considering every possible sound medical etiology/principle, it is more likely than not (to at least the 90% level of probability) that the Veteran's current fibromyalgia diagnosis demonstrates a well-established causal relationship and service-connectedness between her active duty, in-service symptomatology, her VA diagnosis of fibromyalgia, and the chronicity of her current symptoms. Dr. C.B. reasoned that the Veteran entered service fit for duty without any doctor-diagnosed illnesses. Her symptoms show chronicity of symptoms. Her records do not support another alternative explantation (etiology) for her fibromyalgia pathology other than her fibromyalgia symptoms in service. The time lag between her fibromyalgia in service and her fibromyalgia pathology is nil, which is consistent with known medical principles and the natural history of this disease. Her symptoms have worsened. Dr. C.B. stated that this opinion is consistent with the Veteran's subjective lay statements, the objective findings/imaging tests/diagnoses, and the professional opinions of physicians who specialize in this subject area. Thus, Dr. C.B. concluded that a service-connected rating is applicable for the Veteran. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current fibromyalgia is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for fibromyalgia is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for a cervical spine disability. The Veteran asserts that she injured her neck during service, which caused her current cervical spine disability. See April 2018 Veteran statement. The Board concludes that the Veteran has a current disability that is related to an in-service injury. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a). The October 2020 VA examination shows the Veteran has a current diagnosis of cervical strain. A May 2020 Disability Benefits Questionnaire (DBQ) filled out by a private physician documents current diagnoses of mechanical cervical pain syndrome, cervical sprain/strain, cervical spondylosis, degenerative disc disease of the cervical spine, foraminal stenosis/central stenosis, intervertebral disc syndrome of the cervical spine, and myelopathy of the cervical spine. During service, the Veteran injured her neck in March 1991. She was given crutches and medication. On her May 1992 Report of Medical History, the Veteran again reported that she injured her neck in 1991 at a school function and was placed on limited duty status for approximately one year. Thus, the question becomes whether the current disability is related to service. On this question, there are probative opinions in favor of and against the claim. The evidence against the claim includes an October 2020 VA medical opinion. Following a physical examination of the Veteran and a review of her claims file, the VA examiner opined that the Veteran's current cervical spine disability is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there are no medical records showing diagnosis, treatment for the neck condition, or any related neck condition while the Veteran was still in service. Furthermore, there is no sign of continuation of symptoms during service and/or after separation from active service. The evidence in favor of the claim includes a May 2020 IME. Following a physical examination of the Veteran and a review of her VA and private medical records, Dr. C.B., a private physician, opined that, considering every possible sound medical etiology/principle, it is more likely than not (to at least the 90% level of probability) that the Veteran's current cervical/neck residual symptoms are secondary symptoms aggravated as a result of a traumatic fall that occurred in service. These findings demonstrate a well-established causal relationship and connectedness between an injury she sustained as a result of a fall and her chronic symptoms that persist. Dr. C.B. reasoned that the Veteran entered service fit for duty without any doctor-diagnosed illnesses. She had a traumatic fall in service and her symptoms have persisted since then. Her symptoms show chronicity of symptoms. The Veteran more likely than not acquired a neck injury in service as she remembers pain in her neck since service. The cumulative effect of her military service likely injured her cervical spine. She had a serious spine injury in service as documented in her records and lay statements. She had medical visits for spine problems post-service. Her lay statements are internally consistent and consistent with medical records. Thus, Dr. C.B. concluded that a service-connected rating is applicable for the Veteran. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current cervical spine disability is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a cervical spine disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for a scar of the umbilical region. The Veteran contends that that she has a scar of the umbilical region from her in-service laparoscopy procedure. See Board hearing transcript, page 33. The Board concludes that the Veteran has a current disability that is related to an in-service surgery. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a). The October 2020 VA examination shows the Veteran has a current diagnosis of one scar of the umbilical region. During service, a laparoscopy was performed in December 1989. On an April 1991 Report of Medical History, the Veteran reported that due to endometriosis, she was advised to have a laparoscopy in 1989. On a May 1992 Report of Medical History Form, the Veteran stated that in 1989, she had a laparoscopy procedure performed. Thus, the question becomes whether the current disability is related to service. On this question, there is only a probative opinion in favor of the claim. There are no negative nexus opinions. The evidence in favor of the claim includes an October 2020 VA medical opinion. Following a physical examination of the Veteran and a review of her claims file, the VA examiner opined that the Veteran's current scar is at least as likely as not (50 percent or greater probability) incurred in or caused by the in-service injury, event, or illness. The examiner reasoned that records show that the Veteran was diagnosed with laparoscopy in June 1989 and treated while on active duty. Thus, the current diagnosis of scar of the umbilical region is at least as likely as not a progression of the same condition diagnosed while the Veteran was in the military service. Upon review of the record, the Board finds the evidence supports that the Veteran's current scar of the umbilical region is related to service. Accordingly, service connection for a scar of the umbilical region is warranted. 38 U.S.C. § 5107. 4. Entitlement to service connection for GERD. The Veteran testified that she experienced esophageal burning, a burning sensation in the sternum, nausea, vomiting, and diarrhea during her active military service. See Board hearing transcript, pages 29-30. She associated these symptoms with her current GERD. Id. The Board concludes that the Veteran has a current disability that is related to her in-service symptoms. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a). The October 2020 VA examination shows the Veteran has a current diagnosis of GERD. During service, the Veteran was treated for a burning sensation in her trachea and substernal area. The Veteran was seen for complaints of nausea and vomiting in February 1988. She was diagnosed with viral gastroenteritis resolved. In June 1988, she was again treated for nausea and vomiting. Thus, the question becomes whether the current disability is related to service. On this question, there are probative opinions in favor of and against the claim. The evidence against the claim includes an October 2020 VA medical opinion. Following a physical examination of the Veteran and a review of her claims file, the VA examiner opined that the Veteran's GERD is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there are no medical records showing diagnosis, treatment for the GERD condition or any related GERD condition while the Veteran was still in the service. Furthermore, there is no sign of continuation of symptoms during service and/or after separation from active service. The evidence in favor of the claim includes a May 2020 IME. Following a physical examination of the Veteran and a review of her VA and private medical records, Dr. C.B., a private physician, opined that, considering every possible sound medical etiology/principle, it is more likely than not (to at least the 90% level of probability) that the Veteran's current GERD, gastritis and abdominal pain diagnoses demonstrate a well-established causal relationship and service-connectedness between her active duty, in-service symptomatology, her VA diagnoses of GERD, gastritis, and abdominal pain, and the chronicity of her current symptoms. Dr. C.B. reasoned that the Veteran entered service fit for duty without any doctor-diagnosed illnesses. Her symptoms show chronicity of symptoms. Her symptoms have worsened, where she currently is on a GERD, gastritis, abdominal pain medication regiment consisting of over-the-counter medication, fiber, and diet management, as well as other conservative treatments. The physician stated that the opinion is consistent with the Veteran's subjective lay statements, the objective findings/imaging tests/diagnoses, and professional opinions of a physicians who educated and/or specialized in the subject area. Thus, Dr. C.B. concluded that a service-connected rating is applicable for the Veteran. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current GERD is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for GERD is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 5. Entitlement to service connection for a gynecological disability. The Veteran testified that she experienced persistent dysmenorrhea, abnormal pap smears, pelvic inflammatory disease, and endometriosis in service, which are all symptoms of her current gynecological disorders. See Board hearing transcript, pages 35-36. The Board concludes that the Veteran has a current disability that is related to her in-service diseases. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a). The October 2020 VA examination shows the Veteran has a current diagnosis of hysterectomy status post endometriosis. A June 2020 DBQ filled out by a private physician documents current diagnoses of endometriosis, cervix stenosis, bilateral atypical ovary, endometriosis with intrauterine synechiae (adhesions), anteverted uterus, and prolapsed uterus. The May 2020 IME also documents a current diagnosis of pelvic inflammatory disease (PID). Initially, the Board notes that no gynecological disability was noted upon the examination conducted prior to either period of service. Thus, the presumption of soundness attaches to this matter. There is no medical opinion of record regarding whether there is clear and unmistakable evidence that the Veteran's gynecological disability preexisted either period of service. However, the October 2020 VA examiner did opine that there was no clear evidence that the Veteran's current atypical ovaries pre-existed either period of active duty. As such, the Board will address the Veteran's gynecological disability claim on a direct service connection basis. During service, the Veteran was seen for complaints of itching and vaginal discharge in March 1989. The Veteran was diagnosed with progressive dysmenorrhea in June 1989 and prescribed medication. In December 1989, a laparoscopy was performed. A February 1990 gynecological treatment record documents "endoc" cells with one cell that was slightly enlarged. On an April 1991 Report of Medical History, the Veteran reported that due to endometriosis, she was advised to have a laparoscopy in 1989. On a May 1992 Report of Medical History Form, the Veteran stated that in 1989, she had a laparoscopy procedure performed. Thus, the question becomes whether the current disability is related to service. On this question, there are probative opinions in favor of and against the claim. The evidence against the claim includes an October 2020 VA medical opinion. Following a physical examination of the Veteran and a review of her claims file, the VA examiner opined that the Veteran's gynecological disorders, to include stenosis, atypical ovaries, and dysmenorrhea, are less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the stenosis and dysmenorrhea were not secondary to the Veteran's active military service. All of the gynecological disorders were not aggravated beyond their natural progression by the Veteran's active military service. A review of the records fails to show any complaints of gynecological disorders while the Veteran was on active duty. Regarding the endometriosis diagnosis, the VA examiner opined that there was no current pathology and/or diagnosis to render a medical opinion. The examiner did not address the June 2020 IME diagnosis of endometriosis. The evidence in favor of the claim includes a May 2020 IME. Following a physical examination of the Veteran and a review of her VA and private medical records, Dr. C.B., a private physician, opined that, considering every possible sound medical etiology/principle, it is more likely than not (to at least the 90% level of probability) that the Veteran's current PID, cervical stenosis, atypical ovaries, and severe adhesive disease diagnoses demonstrate a well-established causal relationship and service-connectedness between her active duty, in-service symptomatology, her VA diagnoses, and the chronicity of her current symptoms, which resulted in a therapeutic total abdominal hysterectomy. Dr. C.B. reasoned that the Veteran entered service fit for duty without any private hospital/medical records affirming a doctor-diagnosed illness. Her symptoms showed chronicity of its presentation. Her symptoms have worsened, where she eventually underwent a total abdominal hysterectomy, which identified she had severe adhesive disease. Severe adhesive disease is a common byproduct of the PID process. Her records do not support another alternative explanation (etiology) for her worsening adhesions other than her PID in service. The time lag between PID in service and adhesions pathology is consistent with known medical principles and the natural history of this disease. The physician stated that the opinion is consistent with the Veteran's subjective lay statements and the objective findings/imaging tests/diagnoses. Thus, Dr. C.B. concluded that a service-connected rating is applicable for the Veteran. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current gynecological disability is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a gynecological disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 6. Entitlement to service connection for vertigo as secondary to the service-connected migraines. The Veteran testified that her vertigo occurs during a migraine flare-up. See Board hearing transcript, pages 21-22. In the June 2020 Ear Conditions DBQ, the Veteran was diagnosed with benign paroxysmal positional vertigo. The private physician stated that a review of VA and private medical records indicates continuation of symptoms of dizziness with associated migraine headaches, nausea, and vomiting. The Veteran is currently service connected for migraines. Similarly, at her April 2012 VA headaches examination, the Veteran reported associated dizziness when her headaches occur. There are no other medical nexus opinions of records regarding the Veteran's vertigo and her migraines. Upon review of the medical and lay record, the Board finds the evidence supports that the Veteran's current vertigo is proximately due to her service-connected migraines. Accordingly, the Board finds that service connection for vertigo is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a hiatal hernia is remanded. 2. Entitlement to service connection for diverticulosis is remanded. The Board cannot make a fully-informed decision on the issues because an adequate medical opinion is not of record. The October 2020 VA examiner provided negative nexus medical opinions. However, the VA examiner did not address the Veteran's service treatment records (STRs) that document symptoms of nausea, vomiting, and diarrhea symptoms that can be associated with a hiatal hernia and diverticulosis. See STRs dated in February 1988 and February 1991. In an April 2021 statement, the Veteran argued that the October 2020 VA medical opinion was not adequate. Upon remand, a VA addendum medical opinion must be obtained. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's current hiatal hernia and diverticulosis are at least as likely as not related to her active military service, to include her documented in-service symptoms of nausea, vomiting, and diarrhea. A rationale for all opinions must be provided. (Continued on the next page) 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and her representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. M. Watkins, 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.