Citation Nr: 21075521 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-01 305 DATE: December 20, 2021 ORDER Entitlement to service connection for endometriosis is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected post-operative right knee torn lateral meniscus is remanded. Entitlement to a compensable disability rating for service-connected post-operative scars, right knee is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, her endometriosis began during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for endometriosis have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from June 2009 to June 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina (Agency of Original Jurisdiction (AOJ)). The Veteran testified at a virtual hearing before the undersigned in June 2021. A transcript of the proceeding is of record. As an initial matter, the Board notes that at the time the issues of entitlement to service connection for endometriosis and entitlement to increased disability ratings for the Veteran's right knee and scars were appealed, the issue of entitlement to service connection for posttraumatic stress disorder (PTSD) was also included. However, while these matters were pending on appeal, the AOJ granted entitlement to service connection for PTSD in a November 2017 rating decision. This award is effective February 28, 2014 the date the Veteran first filed her claim. As this represents a complete grant of the Veteran's claim, this issue is no longer on appeal before the Board. See Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). Service Connection Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303. Service connection may also 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. 38 C.F.R. §§ 3.303(d). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) 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). Lay evidence is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature." Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. §§ 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. §§ 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 1. Entitlement to service connection for endometriosis The Veteran contends that her endometriosis is etiologically connected to her active duty service. Specifically, she states that she experienced symptoms of endometriosis while on active duty in Iraq. She began to experience painful menstruation in July or August of 2009, which required her to ask for time off work. She was unable to receive treatment in Iraq because it was not deemed necessary; ultimately, she began experiencing pelvic pain all the time not only when menstruating and she sought treatment. She has had three surgeries for endometriosis, the most recent occurring in 2015. She does not actively receive treatment for her condition, instead managing the pain with over-the-counter painkillers. The evidence of record clearly demonstrates that the Veteran has a current diagnosis of endometriosis. Imaging from a civilian medical center documented endometriosis in an October 2010 pathology report. A November 2010 VA examination recorded a diagnosis of endometriosis, as did a September 2013 VA examination. The Board therefore concedes that the Veteran has a current diagnosis of endometriosis. The Veteran's service treatment records (STRs) do not appear to reference treatment for symptoms of endometriosis during her active duty service. A gynecological examination was performed in April 2009, wherein the Veteran did not mention any pelvic pain. Additionally, her post-deployment questionnaires do not include reference to symptoms of endometriosis. However, a lay statement from a fellow servicemember states that approximately halfway through their deployment, the Veteran experiencing pelvic pain, cramping, fatigue, diarrhea, constipation, bloating, and nausea. The Veteran also credibly testified during her June 2021 hearing that she began experiencing these symptoms during her deployment in July or August 2009. The November 2010 VA examination, while noting a diagnosis of endometriosis, stated it was not related to her active duty. It did not provide a rationale in support of this opinion, rendering it inadequate for consideration. The September 2013 VA examination included an opinion from a physician who stated it is less likely than not that the Veteran's endometriosis was incurred in or caused by her active duty service. She rationalized, "Veteran does have evidence of severe endometriosis diagnosed in September 2010. Unfortunately, no documentation in [service medical records] of any pelvic problem, any diagnosis, or any complaint of gynecologic problems, pelvic pain, menstrual irregularities, etc...Although due to the close [nature] of the diagnosis with separation from active duty it is possible that endometriosis started in service, I do not have documented evidence to state that in fact her endometriosis started in service, and it would be speculation." In May 2019, another physician found it is "highly likely" the Veteran's endometriosis was already present in June 2010 (at her separation from service). He said, "Her history is consistent with chronic endometriosis which was re-confirmed laparoscopically and unlikely to be something new. Also, chart shows prior laparoscopic diagnoses and treatment with Lupron x 4 (either monthly or 3 monthly) by her former OBGYN, well-prior to our first encounter [in July 2011]." The Board finds that the evidence of record is at least in equipoise; as such, resolving reasonable doubt in favor of the Veteran, the Board will grant entitlement to service connection for endometriosis. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for service-connected post-operative right knee torn lateral meniscus is remanded. 2. Entitlement to a compensable disability rating for service-connected post-operative scars, right knee is remanded. The Veteran is presently 10 percent service-connected for post-operative right knee torn lateral meniscus. She contends that her right knee is painful and swells with minor to heavy activity. She is required to exercise as part of her employment, but her knee frequently swells after performing the fitness tests, requiring elevation. During her most recent VA examination conducted in November 2017, she reported that her knee experiences flare ups, causing swelling. The examiner who conducted the November 2017 examination did not attest to whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare ups. See Deluca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). As such, the record does not contain an examination report that complies with current legal requirements. The November 2017 examiner indicated that she was unable to opine as to whether pain, weakness, fatigability, or incoordination significantly limits the Veteran's functional ability during flare ups without resort to mere speculation because "no observed/objective basis to answer." The United States Court of Appeals for Veterans' Claims (Court) has made clear that such remarks made concerning flare-ups, without more, renders an examination inadequate. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). As the Court explained in Sharp, "the VA Clinician's Guide makes explicit what DeLuca clearly implied: it instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veterans themselves." Id. at 6. "Even when the claimant is not experiencing a flare-up at the time of the examination, a VA examiner must elicit relevant information as to the Veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record-including the Veteran's lay information-or explain why [he or] she could not do so." Id. The Board must therefore remand to obtain an examination that complies with the directives set out in Sharp. The Board finds that adjudication of the issue of a higher disability rating for the Veteran's service-connected right knee could change the adjudication of entitlement to a compensable disability rating for right knee scar, especially in light of the new VA examination pending. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Consideration of the issue of compensable disability rating, therefore, will be deferred until the intertwined issue regarding the Veteran's right knee condition is resolved. See Harris, 1 Vet. App. at 183 (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). The Board will therefore revisit this issue after the disposition of the Veteran's claim noted above. The matters are REMANDED for the following action: 1. The AOJ shall associate the Veteran's most recent outstanding VA medical treatment records with her file, specifically those records from May 2017 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any private treatment providers that have treated her for her right knee. Thereafter, obtain and associate with the claims folder any private treatment records identified. 3. Then, Afford the Veteran an orthopedic examination to determine the current severity of her right knee. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares. The examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The VA examiner should provide a complete rationale for any opinions provided. 4. Thereafter, readjudicate the claims specifically considering the revised criteria for evaluating instability effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). If any benefit sought on appeal remains denied, furnish the Veteran and her representative, if any, a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Victoria A. Banis, 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.