Citation Nr: 21007276 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-16 640 DATE: February 9, 2021 ORDER Entitlement to service connection for a lumbar spine condition is denied. Entitlement to service connection for a left shoulder condition is denied. Entitlement to an initial rating of 10 percent for vaginitis is granted. FINDINGS OF FACT 1. The Veteran’s current lumbar condition is not etiologically related to symptomatology noted in service. 2. The Veteran’s current left shoulder condition is not etiologically related to symptomatology noted in service. 3. Resolving all doubt in favor of the Veteran, the evidence is in relative equipoise that the Veteran's recurrent vaginitis requires continuous treatment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lumbar spine condition have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309 2. The criteria for service connection for a left shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to a compensable initial rating of 10 percent for vaginitis have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.3, 4.6, 4.7, 4.116, Diagnostic Code 7611. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from May 1989 to December 1993. This matter comes before the Board of Veterans’ Appeals (Board) following an April 2019 Board remand. This matter was originally on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran appeared before the undersigned Veterans Law Judge at a videoconference hearing of the Board in November 2018. A transcript of the proceeding is associated with the claims file. Service Connection Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be granted for certain chronic diseases if manifested to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service or the applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a lumbar spine condition The Veteran contends that service connection is warranted for a lumbar spine condition as a result of her service. She described falling from a rack during service and experiencing intermittent pain in her back since that time. The Veteran’s service treatment records (STRs) show the Veteran reported while she was asleep dreaming about falling, she struck her back on a lock for a storage area. The examiner assessed contusion to shoulder and low back. In November 1991 the Veteran reported lower back pain for four days. The examiner noted the probable cause was a car accident one week prior. In May 1992 the Veteran reported a low back injury. August 1992 STRs show a complaint of left upper shoulder, back, and right neck sharp pain for three days. The Veteran also reported muscle spasms of the upper back for one day. The Veteran’s December 1993 separation Report of Medical Examination indicated a normal evaluation of the Veteran’s spine, other musculoskeletal. In the Veteran’s December 1993 Report of Medical History, the Veteran replied she did experience recurrent back pain. In a February 1999 Report of Medical examination, the examiner noted findings of a normal spine, other musculoskeletal. In the February 1999 Report of Medical History, the Veteran indicated she did not experience recurrent back pain, arthritis, rheumatism, or bursitis. A November 1999 annual certificate of physical condition indicated that the Veteran did not have any injury, illness, or disease within the past 12 months that caused her to be absent, from school, duty or civilian occupation for more than three years, and had not been under the care of a physician for the past 12 months. In January 2013 the Veteran was afforded a VA examination. The examiner reported the Veteran did not have a thoracolumbar spine condition and stated there was no objective evidence to support the lumbar spine condition at the time. The Veteran reported flare-ups that impact the function of her back. She stated her flare-ups occur 365 times per year consisting of back pain lasting one hour. The examiner noted the Veteran’s back condition does not impact her ability to work. The examiner stated there is no objective evidence to support the lumbar spine condition at this time. A May 2014 VA treatment note shows the Veteran reported low back pain starting in 1991 and mid back pain starting in approximately 2011 with insidious onset. In July 2014 the Veteran reported low back pain that has been consistent since falling out of a top rack in 1991. The examiner noted no degenerative facet joint changes in the lower 3 lumbar levels and especially at L5-S1 but neural foramina patent. In a July 2017 VA treatment note the examiner indicated the Veteran’s lumbar x-ray impression showed lumbar x-ray disc spaces preserved, vertebral bodies well aligned, facet DJD L4-5, and pedicles, paraspinal soft tissues and both SI joints unremarkable. The examiner noted the Veteran’s lumbar impression showed segmental dysfunction, degenerative disc disease/degenerative joint disease. A June 2018 VA treatment note shows the Veteran reported her low back pain started in the Navy when she fell off her bed in 1990; the pain is dull and comes and goes. The Veteran stated in 2016 the low back pain came on really bad, insidiously and has not gone away since then. The examiner noted mild degenerative changes with mild narrowing of the neuroforamen at L4-L5 and L5-S1, possible contact of the descending S1 nerve roots in the lateral recess at L5-S1 and mild degenerative changes at c4-c5 and c5-c6. Following the April 2019 Board remand, the Veteran was afforded a new VA examination in November 2019. The examiner reported the Veteran was diagnosed with large perineural Tarlov cyst on the left side at S2 level and lumbar spondylosis with degenerative disc disease in 2013. The Veteran reported she has experienced lower back pain since she injured her back when she fell off her rack (bunk bed) on the ship during service. Currently she has constant pain in her low back that "spasms out" if the toilet is too low or if she sits too long. She does not do a lot of lifting and she has difficulty with prolonged sitting or standing like she used to. The Veteran reported flare-ups six times per month lasting 30 minutes. During flare-ups the Veteran stated she cannot move and must sit still. The Veteran reported functional impairment as decreased capacity for heavy lifting and prolonged sitting and standing. The examiner opined that the Veteran’s lumbar condition is less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner stated that current available evidence showed subsequent resolution of the back pain/lumbar spine condition in service because evidence showed that there was for a period of approximately two decades following service she did not complain of back pain/lumbar problems and in some instances denied recurrent back pain during that period and there is no evidence of the current diagnosed lumbar spine conditions during service. Therefore, the complaints two decades after service in VA medical records is less likely than not due or related to the complaints during service and was more likely than not are conditions that developed after active duty service. Further, the examiner stated the Veteran's current diagnosed lumbar spine conditions are lumbar spondylosis with degenerative disc disease, perineural Tarlov cyst on the left side at S2 level, and (not noted on the DBQ but present on MRI) a 7 mm sized hemangioma was seen in relation to the L2 vertebral body. The etiology of lumbar spondylosis with degenerative disc disease is multifactorial due to a complex interplay between mechanical, cellular, and biomechanical factors leading to end-stage pathology. The most common risk factor being advancing age, and obesity is also a significant risk factor. A review of the literature reveals that there is no objective evidence to suggest that an uncomplicated lumbar strain treated would be the principal cause of the multitude of findings identified in her imaging of 2013 to present. Furthermore, the examiner stated, as for the perineural Tarlov cyst, these are sacs filled with cerebrospinal fluid that most often affect nerve roots in the sacrum, the exact etiology is currently unknown. As for the vertebral body hemangioma, these are the most common benign vertebral neoplasms which arise from dysembryogenetic origin and the etiology are currently unknown. They are seen slightly more in females for unknown reasons and are more symptomatic in the fourth decade of life. The Board finds the November 2019 VA examination report to be probative. The examiner considered the Veteran’s currently diagnosed lumbar conditions, reviewed the Veteran’s STRs and medical records, and conducted an in-person examination. The examiner provided an adequate medical opinion and determined that the Veteran’s currently diagnosed lumbar spine condition is more likely the result of common risk factors than symptoms experienced 20 years prior to the Veteran’s post-service complaints. While the Veteran has made statements to the effect that her lumbar spine condition is related to service, she is not competent to make such a determination, because the question of whether it is related to service is medically complex. Her statements on etiology are therefore afforded little, if any, probative value. See Jandreau, 492 F.3d 1372 at 1376-77. In the January 2013 VA examination, the examiner did not provide a nexus opinion because the examiner found no objective evidence to support the lumbar spine condition at that time. Although the Veteran replied she did experience recurrent back pain in a December 1993 Report of Medical History, in a February 1999 Report of Medical examination, the examiner noted findings of a normal spine. The Veteran’s February 1999 Report of Medical History shows the Veteran indicated she did not experience recurrent back pain, arthritis, rheumatism, or bursitis. The Veteran’s May 2014 VA treatment note shows the Veteran reported low back pain starting in 1991 and mid back pain starting in approximately 2011; however, the Veteran’s treatment records do not reflect continuous complaints of lumbar pain between 1993 and 2013. Thus, the current lay assertion of a continuity of symptoms since service is not credible. There is also no persuasive medical evidence or persuasive credible lay evidence that the Veteran's claimed disorder manifested to a compensable degree within a year of her separation from service. Because a preponderance of the evidence is against the claim for service connection for a lumbar condition, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. 2. Entitlement to service connection for a left shoulder condition The Veteran contends that service connection is warranted for a left shoulder condition as a result of her service. She described falling from a rack during service and experiencing pain in her shoulder for the last 20 years. The Veteran’s STRs show in May 1990 the Veteran reported she fell and hit her back on a storage area. The examiner noted a contusion to the shoulder and lower back. The Veteran’s August 1992 STRs show the Veteran complained of left upper shoulder, back, and right neck sharp pain for three days. The examiner noted muscle strain in the neck and left shoulder. In a December 1993 separation Report of Medical Examination, the examiner noted an evaluation of the Veteran’s upper extremities were normal. The Veteran indicated in her December 1993 Report of Medical History that she did not experience painful or “trick” shoulder or elbow. In the February 1999 Report of Medical Examination, the examiner noted an evaluation of the Veteran’s upper extremities were normal. The Report of Medical History shows the Veteran indicated that she did not experience painful or “trick” shoulder or elbow. A July 2014 VA treatment note shows the Veteran complained of stiffness radiating down in between the shoulder blades. Following the April 2019 Board remand, the Veteran was afforded a new VA examination in November 2019. The examiner reported the Veteran has a left shoulder strain. The Veteran reported her left shoulder condition began in approximately in the early 1990s when she fell off her rack (bunk bed) on the ship and injured her back and her left shoulder. Currently, she has constant pain in her left shoulder that prevents her from lifting it over her head and she manages the condition with a chiropractor and oral and topical analgesics. The Veteran reported flare-ups of moderate severity occurring approximately three to four weeks lasting 20 to 30 minutes. The Veteran reported experiencing shoulder pain when typing and driving. The examiner noted the Veteran has a decreased capacity to perform repetitive overhead activities above the shoulder level. The examiner opined that the Veteran’s left shoulder condition is less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner stated the current left shoulder diagnosis is shoulder strain. Although evidence showed complaint of left shoulder pain during service the complaints in service were acute and evidence does not support chronicity or continuity of the condition as evidenced by denial of shoulder complaints at the time of separation and over two decades, following service she did not complain of shoulder issues. Therefore, the complaints two decades after service in VA medical records is less likely than not due or related to the complaints during service and was more likely than not due to musculoskeletal muscle strain after active duty service. Regarding the Veteran's lay statements describing a pinched nerve causing pain running up and down the muscle, current evidence (including on physical exam) does not support the claim. Although the Veteran’s August 1992 STRs show the Veteran experienced muscle strain in her neck and left shoulder, the Veteran indicated that she did not experience painful or “trick” shoulder or elbow in her December 1993 Report of Medical History. In addition, the February 1999 Report of Medical Examination, shows the examiner noted an evaluation of the Veteran’s upper extremities were normal and the Veteran reported in her February 1999 Report of Medical History that she did not experience painful or “trick” shoulder or elbow. Prior to the Veteran’s July 2014 complaint of stiffness radiating down in between shoulder blades the Veteran’s record is silent for symptoms of shoulder strain. The evidence in support of the claim consists solely of the Veteran’s claim for service connection. While she is certainly competent to report her symptoms and history, her reports must be weighed against the additional evidence of record. Jandreau, 492 F.3d at 1377; Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995). Here, there is no objective evidence of left shoulder symptoms following the Veteran’s August 1992 complaint of shoulder pain. There is also no credible lay evidence of continuity of symptomatology, Thus, the most probative evidence does not show that the symptoms experienced in service, persisted after service. See id.; Caluza, 7 Vet. App. at 510-511. The Board has considered the Veteran’s own statements regarding the nature and etiology of her condition. The Board acknowledges that the Veteran was competent to give evidence about what she experienced; for example, she was competent to discuss pain and other symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran was not competent to diagnose any left shoulder condition or render an opinion as to the cause or etiology of any left shoulder condition because she did not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). Accordingly, though the Veteran was competent to report her symptoms, she was not competent to provide an opinion as to nature and etiology in a case involving complex medical facts. In summary, although the Veteran had an in-service left shoulder muscle strain and a post-service diagnosis, there is no persuasive evidence her post-service left shoulder condition had an onset during service and there are no probative persuasive medical opinions linking her post-service left shoulder condition to service. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for a left shoulder disorder. Increased Rating Disability evaluations are determined by application of the criteria set forth in the rating reschedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 3. Entitlement to an initial rating for vaginitis Under the General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs, a 0 percent rating is warranted for symptoms that do not require continuous treatment. A 10 percent rating is warranted for symptoms that require continuous treatment. A 30 percent rating is warranted for symptoms not controlled by continuous treatment. 38 C.F.R. § 4.116, Diagnostic Codes 7610-7615. The record shows the Veteran was diagnosed with chronic vaginitis in 1990. In a January 2013 VA examination the Veteran reported she gets bacterial or yeast infections, which are treated with Monistat or metronidazole twice per month and occur based on culture related to her menstrual cycle, usually proceeding and just after her cycle. The examiner indicated the Veteran’s condition did not require treatment or medications related to reproductive tract conditions. An October 2013 VA treatment note indicates the Veteran complained of vaginal discharge occurring cyclically. She reported taking over the counter Monistat monthly for the last 6 months. Treatment records from Methodist Family Health Center indicated use of an antibacterial drug, Azithromycin, typically prescribed for acute bacterial infections. In November 2018, the Veteran testified at a Board hearing. She described symptoms including odor, itching, and discharge. She stated that she previously underwent ablation surgery. Subsequently, a hysterectomy was recommended but she declined further surgery. Following the April 2019 Board remand, the Veteran was afforded a new VA examination. The examiner noted the Veteran was diagnosed with recurrent vaginitis. The Veteran reported an onset of vaginitis in the 1990's with symptoms of vaginal discharge, severe cramping, heavy bleeding. She was started on birth control pills which helped with symptoms at the time. The examiner noted she also reported dysmenorrhea and pelvic pain associated with her menstrual cycle, which is a separate and unrelated condition. The examiner additionally noted the Veteran reported ongoing vaginal discharge, post menses BV and yeast infections. The Veteran reported she is currently under the care of a private physician, who usually treats her for these conditions. She uses over the counter medication for discharge consistent with yeast infections. The Veteran reported bouts of these infections at least once a month; last month was the last time she had one. The examiner noted the Veteran was asymptomatic the day of the exam. In addition, the examiner noted the Veteran’s most recent pap smear was last month and was normal per the Veteran. Further, the Veteran reported 20 years of sexual dysfunction due to either vaginal dryness or heavy discharge, dyspareunia. The examiner reported she has not sought treatment for her symptoms and reported divorcing in part due to her sexual dysfunction. The examiner noted the Veteran has had treatment for symptoms related to her reproductive organ consisting of over the counter Monistat and MetroGel, as well as prescribed Flagyl. Additionally, the examiner noted dates of treatment as 2010 and 2011. The examiner noted the Veteran does not currently require treatment for symptoms related to reproductive tract conditions. (Continued on the next page)   The Veteran’s treatment records show a consistent report of using over the counter medications to treat her vaginitis. The January 2013 VA examination indicated the Veteran treated her condition with Monistat or metronidazole twice per month and it occurs based on culture related to her menstrual cycle, usually proceeding and just after her cycle. An October 2013 treatment note indicated she reported taking over the counter Monistat monthly for the last 6 months and treatment records from Methodist Family Health Center indicated use of an antibacterial drug, Azithromycin, typically prescribed for acute bacterial infections. Although the April 2019 examiner specified that the Veteran did not currently require treatment or medications for symptoms related to reproductive tract conditions, the examiner noted the Veteran reported she is currently under the care of a private physician, who usually treats her for these conditions. Additionally, the examiner reported she uses over the counter medication for discharge consistent with yeast infections. The Veteran reported bouts of these infections at least once a month, additionally stating the previous month was the last time she had one. Furthermore, the examiner noted the Veteran has had treatment for symptoms related to her reproductive organ consisting of over the counter Monistat and MetroGel, as well as prescribed Flagyl. The Veteran’s treatment records show a prescription for Flagyl and ampicillin in 2011, which is typically used to treat bacterial infections. Resolving all doubt in favor of the Veteran, the Board finds that the Veteran’s vaginitis occurring on a cyclical basis and requiring over the counter medication requires continuous treatment thereby warranting a 10 percent rating. A rating higher than 10 percent, however, is not warranted under the General Rating Formula because the record does not indicate that the Veteran’s vaginitis is not controlled by the use of continuous medication. For these reasons, the Board finds that the preponderance of the evidence is against finding a rating in excess of 10 percent. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Daley, 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.