Citation Nr: 21075510 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-35 571 DATE: December 20, 2021 ORDER Entitlement to service connection for fibroids is denied. Entitlement to an initial rating in excess of 10 percent for idiopathic constipation is denied. REMANDED Entitlement to service connection for musculoskeletal pain of the right lower extremity is remanded. Entitlement to service connection for musculoskeletal pain of the left lower extremity is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that fibroids began during active service, or are otherwise related to an in-service injury or disease. 2. The Veteran's idiopathic constipation results in moderate disability with frequent episodes of bowel disturbance with abdominal distress. CONCLUSIONS OF LAW 1. The criteria for service connection for fibroids are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a disability rating in excess of 10 percent for service-connected idiopathic constipation are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, Diagnostic Code 7319. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from October 1989 to April 1990, and from September 1996 to July 1998. She testified before the undersigned Veterans Law Judge during a March 2021 hearing. This matter is on appeal from April 2014 and May 2015 rating decisions, and was previously remanded by the Board of Veterans' Appeals (Board) in May 2021. 1. Entitlement to service connection for fibroids The Veteran contends that her fibroids that began during service. March 2021 Hearing Transcript at 3. 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of fibroids, and evidence shows that she testified about having symptoms during service, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of fibroids began during service or are otherwise related to an in-service injury, event, or disease. Private treatment records show the Veteran was not diagnosed with an uterine fibroid until July 1999, after her separation from service. While the Veteran is competent to report having experienced symptoms associated with uterine fibroids since service, she does not have the training or credentials to provide a competent opinion as to a diagnosis or the onset date of such diagnosis. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In a June 2021 opinion and an August 2021 clarifying addendum opinion, the June 2021 VA examiner opined that the Veteran's uterine fibroids are not at least as likely as not related to an in-service injury, event, or disease, including treatment for cramping pelvic pain in May 1997. The rationale was that fibroids are not caused by any event; they are hormonal or genetic. The May 1997 service treatment record shows that the Veteran was assessed to have pelvic inflammatory disease, with a plan to advise fluids, urinary analysis, culture, and sensitivity, and to return for follow-up in two weeks. There was no further follow-up care noted in relation to that diagnosis. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes her fibroids are related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue because the record does not show that she has the medical training or credentials to make such a determination. Jandreau, 492 F.3d at 1377 n.4; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the June 2021 VA examiner's opinions. 2. Entitlement to an initial rating in excess of 10 percent for idiopathic constipation The Veteran contends that she is entitled to a higher rating due to stomach cramps, pain, bloating, nausea, and blood in urine/stools. March 2021 Hearing Transcript at 2. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In making this determination, the Board notes that neither the Veteran nor her representative has raised any other issues, nor has the record reasonably raised any other issues. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Moreover, as the Veteran has not contended, nor does the evidence reflect, that this disability renders her unemployable, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran's disability is rated as 10 percent disabling under Diagnostic Code 7913, which evaluates impairment from irritable colon syndrome. 38 C.F.R. § 4.114, Diagnostic Code 7913. A 10 percent rating is warranted for moderate disability, with frequent episodes of bowel disturbance with abdominal distress. The highest 30 percent rating is warranted for severe disability, with diarrhea, or alternating diarrhea and constant constipation, with more or less constant abdominal distress. Id. The Board concludes that an initial rating in excess of 10 percent is not warranted. The pertinent evidence of record does not show that the Veteran's disability is severe with diarrhea or alternating diarrhea and constant constipation, with more or less constant abdominal distress. An August 2015 treatment record reflects that the Veteran had constipation for three to four days followed by diarrhea. The Veteran was provided a VA examination in December 2015. Her symptoms included abdominal distension described as daily "bloating," nausea once a week with increased constipation, and decreased appetite. She had frequent episodes of bowel disturbance with abdominal distress. Over the past 12 months, the Veteran had seven or more exacerbations and/or attacks of her intestinal condition. An examination showed that her abdomen was soft, diffuse tender to palpation, no masses, and had bowel sounds in all four quadrants. The Veteran was afforded another VA examination in June 2021. She reported having anal bleeding, severe cramping/pain in her abdomen, nausea with some vomiting, and difficulty sleeping due to diarrhea at night. The Veteran had frequent episodes of bowel disturbance. No episodes of exacerbations and/or attacks were reported. In this case, the examinations, treatment records, and the Veteran's contentions do not indicate that her disability is severe with diarrhea or alternating diarrhea and constant constipation, with more or less constant abdominal distress. The Board acknowledges the Veteran's reports of nausea, pain, and frequent episodes of abdominal distress. However, the evidence does not establish more or less constant abdominal distress. Both examinations specifically show that the Veteran had frequent episodes as opposed to more or less constant abdominal distress. Consequently, the Board is unable to conclude that the highest 30 percent rating is warranted for this disability. Therefore, the appeal for an initial rating in excess of 10 percent for idiopathic constipation is denied. REASONS FOR REMAND 1. Entitlement to service connection for musculoskeletal pain of the right lower extremity is remanded. 2. Entitlement to service connection for musculoskeletal pain of the left lower extremity is remanded. Regrettably, another remand is necessary. The Board remanded these issues to provide the Veteran with a VA examination. If no disability was diagnosed, the examiner was instructed to state whether any reports of pain did not reach the level of a functional impairment of earning capacity as defined in Saunders v. Wilkie, 886 F.3d. 1356 (Fed. Cir. 2018). The Veteran was provided an examination in June 2021, and no disability was diagnosed. However, the examiner did not state whether the Veteran's reports of pain did not reach the level of a functional impairment of earning capacity as requested by the Board. Therefore, a remand for an addendum medical opinion is required. The matters are REMANDED for the following action: Obtain an addendum medical opinion from the June 2021 VA muscle injuries examiner (or, if unavailable, from a medical professional with appropriate expertise) to determine whether the Veteran's reported pain reaches the level of a functional impairment of earning capacity. The examiner is requested to review the record and offer an opinion as to whether that the Veteran's reported pain reaches the level of a functional impairment of earning capacity as defined by Saunders, supra. If the examiner determines that the Veteran's pain reaches the level of a functional impairment of earning capacity, they should opine as to whether such pain is at least as likely as not (at least an approximate balance of positive and negative evidence) related to her military service. The examiner should consider the Veteran's reports of pain that began in service and continued to the present. The examiner is reminded that the Veteran is competent to report having pain since service without corroborating evidence. The examiner is also reminded that the absence of "chronicity of care," in and of itself, is not a valid basis for a negative medical conclusion. A complete rationale should be given for all opinions and conclusions expressed. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Barstow, 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.