Citation Nr: 21072481 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 18-50 806 DATE: December 3, 2021 ORDER Service connection for endometriosis with left side pain is granted. Service connection for a metabolic disorder is denied. Service connection for dizziness/vertigo is denied. REMANDED Entitlement to service connection for a gastrointestinal disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to a total disability based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's endometriosis with left side pain is etiologically related to her service-connected hysterectomy. 2. The preponderance of the evidence is against a finding that the Veteran has had, at any time during the appeal, a current diagnosis for a metabolic disorder that is etiologically related to her service and/or a service-connected disability. 3. The preponderance of the evidence is against a finding that the Veteran has had, at any time during the appeal, a current diagnosis for a chronic dizziness/vertigo disorder that is etiologically related to her service. CONCLUSIONS OF LAW 1. The criteria for service connection for endometriosis with left side pain have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a metabolic disorder have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for a dizziness/vertigo have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1998 to July 2001, with additional Federalized National Guard service from September 21, 2005 to October 12, 2005. In February 2021, a Board hearing was held before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In June 2021, the Board remanded the current claims for additional development. The Board acknowledge that the Veteran's initially filed a claim for service connection for left side pain. However, in light of the evidence of record, that reflects that the Veteran's left side pain was caused by endometriosis, the Board has recharacterized this issue above to more accurately reflect the Veteran's claimed disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Finally, it is noted that in October 2021, the Veteran sent correspondence to the Board in which she "request[ed] records" for two VA examiners, C.M., NP and P.L., Au.D. It is unclear from the Veteran's correspondence whether she is requesting information regarding these examiners, copies of the VA examination reports that were completed by these examiners, or other records; therefore, the Board does not find a clear Privacy Act request. Moreover, a review of the claims file shows that the VA examinations conducted by the C.M., NP and P.L., Au.D., were for issues not in appellate status (see July 2021 rating decision) and, therefore, the Board finds it may proceed with adjudication of the claims that are presently on appeal. The Board instead encourages the Veteran to follow-up with the Regional Office with specific requests for records or information. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. With any claim for service connection, it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The requirement that a current disability exists is satisfied if the claimant had a disability at the time his or her claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Without a current diagnosis, there may be no service connection for the claimed condition. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). With an approximate balance of positive and negative evidence on a relevant issue, VA resolves reasonable doubt in the claimant's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for endometriosis with left side pain. The record shows the Veteran has a diagnosis of endometriosis with left side pain and she is service-connected for a hysterectomy. See September 2021 VA Medical Opinion. Such is sufficient to meet the first and second elements for secondary service connection. Thus, the remaining issue for consideration is whether a nexus exists between the Veteran's endometriosis and her service-connected hysterectomy. In that regard, the Board finds that it does. In the September 2021 VA examination report, the VA examiner explained that the Veteran had a separate and distinct diagnosis of endometriosis (apart from her hysterectomy) that accounted for her symptoms of left flank pain. The examiner also repeatedly cited to various treatment records that note "endometriosis s/p hysterectomy" and indicated that a nexus existed between endometriosis and status post hysterectomy. The Board finds this evidence to be probative and consistent with the treatment records that show the Veteran had endometriosis status post hysterectomy. There are no medical opinions to the contrary. Thus, there is sufficient evidence to establish an etiological link between the Veteran's endometriosis and her service-connected hysterectomy. Based on the foregoing evidence, the Board finds that entitlement to service connection for endometriosis with left side pain, to include as secondary to service-connected hysterectomy, is warranted. 2. Entitlement service connection for a metabolic disorder. The Veteran contends that service connection is warranted for a metabolic disorder. Nevertheless, after a thorough review of the evidence of record, the Board finds that the Veteran does not have a current diagnosis for a metabolic disorder at any time during the appeal period. Significantly, in September 2021, the Agency of Original Jurisdiction (AOJ) procured a VA examination to evaluate the Veteran's claimed metabolic disorder. The VA examiner found that the Veteran did not have a current diagnosis for a chronic metabolic disorder. This determination was based on the Veteran's objective findings that included a metabolic panel performed in May 2021 showing results all within normal ranges and based on the Veteran's reports denying that she had a metabolic disorder. The examiner noted that the Veteran had transient fluctuations with weight gain, mild hyperlipidemia, and slight elevations over the years with hemoglobin A1c. The examiner indicated, however, that the Veteran was on multiple anti-psychotic medications that have metabolic side effects, to include possible weight gain, elevations in blood sugar, and increased cholesterol. The examiner clarified that these side effects, were closely monitored and were currently within normal ranges. Thus, there was no pathology to render a diagnosis. The Veteran's contemporaneous VA treatment records also reflect that the Veteran does not have any endocrinological problems. The Board has specifically considered the Veteran's claim for service connection for a metabolic disorder. However, to the extent that the Veteran's general claim for service connection for this disorder implies that she has a current diagnosis, the Board finds that she is not competent as a lay person to attest to such a diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the Veteran's post military treatment records and VA examination report, as outlined above, weigh against her claim for a current metabolic disorder, as these records show no endocrinological abnormalities. The Board also acknowledges the Veteran's reports that her constant fatigue and weight gain are symptoms attributable to a metabolic disorder. See October 2013 Correspondence and February 2021 Board Hearing Transcript. Significantly, however, as noted above, the Veteran's metabolic panel was normal, and her weight gain was determined to be a transient side effect attributable to her psychiatric medication and not a current metabolic disability. With regard to Veteran's symptom of fatigue, VA and private treatment records overwhelmingly indicate that this symptom is associated with her depression, sleep problems, gabapentin, life events, stress, and pain. See April 2009 Poplar Springs Hospital records and March 2020 and April 2021 VA treatment records. Accordingly, the Board affords the Veteran's statements regarding her symptoms of fatigue/weight gain little to no probative value. In conclusion, the Board finds that the preponderance of the evidence is against a finding that the Veteran has a current a metabolic disorder to support her claims for both direct and secondary service connection. In the absence of proof of a current disability for which service connection may be granted, there is no valid claim. See Brammer, 3 Vet. App. at 225. Accordingly, the claim for service connection for a metabolic disorder must be denied. 3. Entitlement to service connection for dizziness/vertigo. The Veteran contends that service connection is warranted for dizziness/vertigo. Specifically, she asserts that she was treated for vertigo for 3 days after hitting her head during active duty service in 1998. See February 2021 Board Hearing Transcript. Nevertheless, after a thorough review of the evidence of record, the Board finds that the Veteran has not had any current diagnosis for this disorder, at any time during the appeal period, to support her claim for service connection. In that regard, in September 2021, the AOJ procured a VA examination to evaluate the Veteran's claimed dizziness/vertigo. The VA examiner found that the Veteran did not have a current diagnosis for a disorder associated with vertigo/dizziness. The examiner noted the Veteran's reports that she had intermittent periods of vertigo with several years in between. However, the Veteran denied any current symptoms. The examiner also acknowledged that the Veteran has been on anti-psychotic medications for years and that these medications (Lurasidone) have vertigo noted in the side effects profile. The Veteran also reported these medications made her drowsy/woozy and have been adjusted several times to correct this side effect. The Board notes that although the Veteran testified that she had symptoms of dizziness and VA and private treatment records show that she has experienced dizziness during the appeal period, there is no diagnosis associated with that symptom. Rather, as indicated above, the Veteran appears to have experienced transient side effects of dizziness, which are corrected through medication adjustment. Moreover, despite the Veteran's reports of symptoms of dizziness, there is no competent or credible evidence that such symptoms have been productive of functional impairment of earning capacity. See Wait v. Wilkie, 33 Vet. App. 8 (2020) The Board has specifically considered the Veteran's claim for service connection for a vertigo/dizziness. However, to the extent that the Veteran's general claim for service connection for this disorder implies that she has a current diagnosis, the Board finds that she is not competent as a lay person to attest to such diagnoses. See Jandreau, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran has a current disorder associated with vertigo/dizziness to support her claim service connection. In the absence of proof of a current disability for which service connection may be granted, there is no valid claim. See Brammer, 3 Vet. App. at 225. Accordingly, the claim for service connection for a metabolic disorder must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a gastrointestinal disorder In September 2021, the Veteran underwent a VA examination to evaluate the etiology of her claimed gastrointestinal disorder. The VA examiner indicated the Veteran did not have a current diagnosis for an intestinal condition, to include irritable bowel syndrome, chronic enteritis, and diverticulitis. The examiner, however, did not consider the Veteran's November 2020 diagnosis for gastroenteritis. Accordingly, the Board finds this VA examination insufficient for rating purposes. 2. Entitlement to service connection for an acquired psychiatric disorder is remanded. In the June 2021 remand, the Board specifically instructed that an examiner was to provide an opinion as to whether it is at least as likely as not that any diagnosed psychiatric disorder is related to active duty service, to include any military sexual trauma (MST) stressor determined to have occurred therein. In an attempt to comply with the Board's June 2021 remand directives, the AOJ procured a September 2021 VA examination report and medical opinion. The VA examiner indicated the Veteran's bipolar disorder was at least as likely as not incurred in or caused by the Veteran's service and specifically referenced the onset of the Veteran's psychiatric symptoms in 2009. However, the record does not reflect that the Veteran had active duty service during this time. Although it appears that the Veteran was on National Guard annual training from April 2009 to May 2009, service connection may only be granted for a disability resulting from disease or injury incurred or aggravated while performing active duty for training or from an injury incurred or aggravated while performing inactive duty training as a member of the National Guard of any State, under 32 U.S.C. §§ 316, 502, 503, 504, or 505 or the prior corresponding provisions of law. 38 C.F.R. § 3.6(c)(3). This is considered Federalized National Guard status. The record does not reflect that the Veteran's National Guard annual training from April 2009 to May 2009 qualified as Federalized service under 32 U.S.C. §§ 316, 502, 503, 504, or 505. Accordingly, this period of National Guard service is not considered "active military, naval, or air service" for the purpose of VA compensation benefits. Therefore, the VA examiner's positive nexus opinion is not supported by the record and cannot be relied upon to support the Veteran's claim for service connection. Nevertheless, it is also noted that the VA examiner did not otherwise provide an opinion as to whether the Veteran's current psychiatric disorder was etiologically related to the Veteran's reported MST stressor from her Federalized National Guard service from September 21, 2005 to October 12, 2005. As such, the September 2021 VA medical opinion does not comply with the Board's June 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, remand is warranted for a new VA examination and medical opinion consistent with the directives herein. 3. Entitlement to a TDIU due to service-connected disabilities is remanded. Consideration of entitlement to a TDIU is dependent upon the impact of the Veteran's service-connected disabilities on her ability to obtain or retain substantially gainful employment. Accordingly, the matter of a TDIU is inextricably intertwined with the Veteran's claims remanded herein. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is, thus, also required. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of her acquired psychiatric disorder. The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination. All indicated studies should be completed. All findings must be fully reported. a) After evaluation and review of the record, provide a diagnosis for any current psychiatric disorder. The examiner must specifically consider and discuss the diagnoses of record, to include the diagnosis of major depressive disorder and bipolar disorder. b) The examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed psychiatric disorder is related to active service, to include any MST stressor determined to have occurred therein. c) The examiner must also provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed psychiatric disorder was caused or aggravated by her service-connected hysterectomy. Aggravation in this context is defined as any increase in disability. The examiner is advised that the Veteran is competent to report her symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If her reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of the Veteran's claimed gastrointestinal disorder. The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination. All indicated studies should be completed. All findings must be fully reported. a) After evaluation and review of the record, provide a diagnosis for any current gastrointestinal disorder. In rendering this diagnosis, the examiner must specifically consider and discuss the November 2020 diagnosis for gastroenteritis. b) The examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed gastrointestinal disorder was related to active duty service. In rendering this opinion, the examiner must consider and discuss the service treatment records showing gastroenteritis in March 1999 and the Veteran's February 2021 hearing testimony that her stomach problems continued since service. The examiner is advised that the Veteran is competent to report her symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If her reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.