Citation Nr: 21072798 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 18-30 652 DATE: December 6, 2021 ORDER Service connection for a right hip disorder, diagnosed as sacroiliitis in the right pelvis and trochanteric bursitis in the right hip, is denied. Service connection for an ovarian disorder, diagnosed as polycystic ovary syndrome (PCOS) and an ovarian cyst, is denied. REMANDED Service connection for a cervical spine disorder, previously claimed as arthritis and congenital spinal stenosis, is remanded. FINDINGS OF FACT 1. The Veteran has a current right hip disability diagnosed as sacroiliitis in the right pelvis and trochanteric bursitis in the right hip. 2. The Veteran did not experience a right hip injury, disease, or event in service. 3. The Veteran has a current ovarian disability diagnosed as an ovarian cyst and polycystic ovarian syndrome. 4. The Veteran experienced in-service symptoms related to the female reproductive system in July 2002. 5. The ovarian disorders of ovarian cyst and polycystic ovarian syndrome did not have onset in service and are not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hip disorder, diagnosed as sacroiliitis in the right pelvis and trochanteric bursitis in the right hip, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303(a), 3.326. 2. The criteria for service connection for an ovarian disorder, diagnosed as polycystic ovary syndrome (PCOS) and an ovarian cyst, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303(a), 3.326. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2002 to July 2002 and from January 2003 to August 2003. The Veteran served in the Army National Guard of Tennessee from April 2003 to March 2010. See Certificate of Release or Discharge from Active Duty. This matter is on appeal from a July 2016 rating decision issued by the Regional Office (RO). The Board held a virtual hearing in April 2020 before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. These matters were previously before the Board in June 2020. The Board remanded the instant issues in order to obtain VA examinations and opinions for each of the three claims. VA examinations were conducted in November 2020. A supplemental statement of the case (SSOC) was issued in March 2021. These matters were before the Board again in July 2021. The Board remanded in order to obtain addendum opinions. VA examinations were conducted in September 2021. A SSOC was issued in September 2021. Duties to Notify and Assist As previously noted in the June 2020 Board decision, the Veteran was notified that medical treatment records from the Army Reserve National Guard for the period of service from August 2003 were not available for the RO's review in adjudicating the instant issues. The Veteran served in the Army National Guard of Tennessee April 2003 to March 2010. See Certificate of Release or Discharge from Active Duty. The RO has made reasonable efforts to obtain relevant records and evidence in this case. The information and evidence that has been associated with the record includes the available service treatment records, service personnel records, post-service VA and private treatment (medical) records, and lay statements. The record reflects that the RO attempted to locate the missing medical treatment records on multiple occasions. The Veteran was informed of the missing records and was offered an opportunity to submit any such records in his possession in August 2010. Formal findings on the unavailability of complete medical treatment records were made in August 2010 and the Veteran was informed of such. 38 C.F.R.§ 3.159(e). Further attempts to obtain the records would be futile. In July 2016, a letter was sent to the Veteran to explain the appeals process and the claims were adjudicated. Thus, the Board finds that VA has obtained all identified and available service and post-service treatment and personnel records for the Veteran. Despite these efforts, it appears that there are still records missing. In such situations, where service treatment records are missing, the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law, however, does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). LEGAL AUTHORITY FOR SERVICE CONNECTION Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). 1. Service Connection for a Right Hip Disorder The Veteran contends that the right hip disorder began in service when she slipped and fell off a truck in 2014. See April 2020 Transcript. After a review of the evidence of record, the Board finds the Veteran has a current right hip disability diagnosed as sacroiliitis in the right pelvis and trochanteric bursitis in the right hip. See December2015 Private Treatment Records; April 2020 Private Treatment Records. The weight of the lay and medical evidence is against finding that the Veteran experienced a right hip injury, disease, or event in active service. Upon review of the service treatment records, there are no reports of injury or complaints of or treatment for a right hip disorder in service; rather, during service, the Veteran affirmatively reported that the hips were in normal condition on multiple occasions. See April 2002 Service Treatment Records; January 2003 Pre-Deployment Health Assessment; July 2003 Post-Deployment Medical Assessment. The Veteran sought in-service treatment for other, nonrelated musculoskeletal issues, but did not report a hip injury or symptoms or seek treatment for the right hip. See March 2002 Service Treatment Records (Treatment for the neck/cervical spine); April 2002 Service Treatment Records (Treatment for shin splints); May 2003 Service Treatment Records (Treatment for shin pain). In a July 2003 post deployment medical assessment, which was documented one month prior to service separation, the Veteran reported that she did not experience painful joints, tendons, or ligaments, weakness, or fatigue. In a July 2003 report of medical assessment, the Veteran indicated that she did not suffer from an injury or illness for which she did not seek medical attention and that she has been in the same overall health as documented in the last medical examination. The first report of post-service right hip symptoms of record is in June 2007 VA treatment records, where the Veteran reported that the arms and hips fall asleep but did not report musculoskeletal symptoms. The first report of post-service right hip musculoskeletal symptoms of record is in December 2015 private treatment records, approximately 12 years after separating from the Army and five years after separating from the Army National Guard, when the Veteran received a right hip trochanteric bursa injection. The Veteran is mistaken in her recollection that a right hip injury occurred in service. During the April 2020 Board hearing, the Veteran testified that she injured the right hip in 2014 "during active duty." The Veteran served on active duty in the Army from March 2002 to July 2002 and from January 2003 to August 2003, then served in the Army National Guard of Tennessee from April 2003 to March 2010. See Certificate of Release or Discharge from Active Duty. The Veteran was not on active duty in 2014 when she asserts a right hip injury occurred. With regard to the question of whether any injury occurred during active service, the more contemporaneous evidence of record includes the Veteran's own lay history reported in the July 2003 report of medical assessment near service separation, normal findings in the July 2003 post deployment medical assessment at service separation, military personnel records documenting the Veteran's service, and an absence of in-service treatment as an additional factor during a large gap between service separation and the first evidence of treatment of the right hip. Consistent with this finding, the September 2021 VA examiner explained that "sacroiliitis occurs soon after the injury [and] not a year later." Based on the foregoing, the Board finds that criteria for service connection for a right hip disorder have not been met; thus, the appeal must be denied. 2. Service Connection for an Ovarian Disorder The Veteran contends that a claimed ovarian disorder is related to the in-service symptoms she experienced and the conditions she was living in while stationed in Iraq. See April 2020 Virtual Board Hearing; July 2002 Service Treatment Records (The Veteran sought in-service treatment for excessive bleeding and cramping). After a review of the evidence of record, the Board finds the Veteran has a current ovarian disability diagnosed as an ovarian cyst and polycystic ovarian syndrome (PCOS). See May 2016 Private Treatment Records. The Board also finds that the Veteran experienced in-service symptoms related to the female reproductive system. In July 2002, the Veteran sought in-service treatment for excessive bleeding and blood clots related to the menstrual cycle. The military medical examiner diagnosed dysmenorrhea (painful menstruation, typically involving abdominal cramps) and instructed the Veteran to take Motrin. In a January 2003 pre-deployment health assessment, the Veteran reported being in "very good" health with no indication that she had problems with the reproductive system. In a July 2003 report of medical assessment, the Veteran reported being in the same health as the last medical assessment, did not have any illnesses or injuries that caused her to miss duty longer than three days, and did not experience an injury or illness while on active duty for which she did not seek medical care. The weight of the evidence is against finding that the ovarian disorder had its onset in service or is otherwise etiologically related to service. In a September 2021 VA examination addendum opinion, the VA examiner opined that the ovarian disorder was less likely than not incurred in or caused by the claimed in-service injury. The VA examiner reasoned that the menstrual pain documented in service was acute only and there is no medical evidence of chronicity of care. The VA examiner also explains that, while PCOS was suspected in May 2016 private treatment records, operative notes in 2017 indicate that the ovaries were normal. For these reasons, the Board finds that criteria for service connection for an ovarian disorder have not been met; thus, the appeal must be denied. REASONS FOR REMAND 3. Service connection for a cervical spine disorder, previously claimed as arthritis and congenital spinal stenosis, is remanded. Upon review of the record, the Board notes a diagnosis of congenital spinal stenosis. It is unclear whether the congenital spinal stenosis is a congenital disease or a congenital defect. Also, the VA examination opinion of record does not specifically address the correct standard of evidence applicable to congenital diseases and defects. As such, the Board finds that remand is warranted to obtain a VA examination addendum opinion to specifically address the congenital spinal stenosis diagnosis. The issue of service connection for a cervical spine disorder is REMANDED for the following action: Obtain a VA addendum opinion to help determine service connection for congenital spinal stenosis. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The examiner should provide the following opinions: Is the previously identified "congenital spinal stenosis" a congenital "defect" or a congenital "disease"? 1. If the spinal stenosis is a congenital defect, is it at least as likely as not (50 percent or higher degree of probability) that there is additional disability due to aggravation of the defect during service because of a superimposed injury to the cervical spine during service (in March 2002). 2. If the spinal stenosis is a congenital disease, is it at least as likely as not (i.e., probability of 50 percent or more) that the congenital spinal stenosis is etiologically related to the in-service cervical spine injury in March 2002? J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Costantino, 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.