Citation Nr: 21008078 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 12-12 654 DATE: February 11, 2021 ORDER Service connection for polycystic ovarian syndrome (PCOS) is denied. FINDING OF FACT The Veteran’s PCOS did not manifest during active service and is not otherwise shown to be related to her active service. CONCLUSION OF LAW The criteria to establish service connection for PCOS have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) from July 1989 to November 1989 and had active service from December 1990 to September 1994. This matter was previously before the Board of Veterans’ Appeals (Board) in July 2020 when the issue of service connection for PCOS was remanded for further development. Further development having been completed; the matter is once again before the Board. Service Connection Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § § 1110. 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. 38 C.F.R. § § 3.303(d). 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 current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, service connection may also be established under 38 C.F.R. §§ 3.303(b) if a chronic disease is shown in service, and subsequent manifestations of the same chronic disease at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Service connection may also be established based upon a legal presumption by showing that a disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. § § 1101; 38 C.F.R. § §§ 3.307, 3.309(a). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). If a condition is not noted upon entrance into service, then to rebut the presumption of soundness at service entrance VA must show by clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during or by the Veteran's service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845 (Fed. Cir. 2006). If a pre-existing disability is noted upon entry into service, then the Veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. In that case, 38 U.S.C. § 1153 applies and the burden falls on him, not VA, to establish aggravation. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994); 38 C.F.R. § 3.306. Defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90 (July 18, 1990). Congenital or developmental "defects" automatically rebut the presumption of soundness and are therefore considered to have pre-existed service. 38 C.F.R. §§ 3.303(c), 4.9. Service connection is generally precluded by regulation for such "defects," because they are not "diseases" or "injuries" within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; Terry v. Principi, 340 F.3d 1378 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174 (2007). VA's Office of General Counsel has distinguished between congenital or developmental defects, for which service connection is precluded by regulation, and congenital or hereditary diseases, for which service connection may be granted, if initially manifested in or aggravated by service. VAOPGCPREC 82-90, VAOPGCPREC 67-90. The VA General Counsel draws on medical authorities and case law from other federal jurisdictions and concludes that a defect differs from a disease in that a defect is "more or less stationary in nature," while a disease is "capable of improving or deteriorating." VAOPGCPREC 82-90 at para. 2. In this regard, the presumption of soundness does not apply to congenital defects because such defects "are not diseases or injuries" within the meaning of 38 U.S.C. §§ 1110 and 1111. 38 C.F.R. § 3.303(c); Terry, 340 F.3d at 1385-1386 (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease- or injury-related defect to which the presumption of soundness can apply"). However, a congenital defect can still be subject to superimposed disease or injury. VAOPGCPREC 82-90. If such superimposed disease or injury does occur, service connection may be warranted for the resulting disability. Id. In deciding an appeal, 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. Gabriel v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Further, competency of evidence differs from the weight and credibility of evidence. Competency is a legal concept that determines whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination regarding 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). The Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms, as symptoms require only personal knowledge of what is observed using his senses, not medical expertise. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 307 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. The Board is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § § 5107(b); 38 C.F.R. §§ 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § § 5107(b). Service connection for PCOS is denied. The Veteran contends that her currently diagnosed PCOS is related to her active service. For the reasons set forth below, the appeal will be denied. The Veteran’s January 1989 entrance examination does not show any medical mention of PCOS. An August 1994 service treatment record (STR) indicates a report of lack of menstrual periods. VA medical records indicate a diagnosis of PCOS in April 1996. Pursuant to the July 2020 Board remand, the Veteran was afforded a VA examination in August 2020 and an addendum opinion was provided in November 2020. Specifically, the examiner was asked to opine as to whether the Veteran’s PCOS is a congenital “defect” or a “disease.” The examiner was asked to provide an opinion, if a determination was made that the Veteran’s PCOS is a congenital defect, as to whether any other disease or injury was superimposed upon the congenital defect during her active service. If a determination was made that the Veteran’s PCOS is a congenital disease, the examiner was asked to provide an opinion as to whether it is clear and unmistakable that the condition preexisted her active service. The examiner was further asked to provide and opinion, in the event that a determination was made that there is clear and unmistakable evidence that the condition preexisted her active service, as to whether it is also clear and unmistakable that the preexisting PCOS was not aggravated during the Veteran’s active service. Finally, if a determination was made that it is not clear and unmistakable that the condition preexisted her active service, the examiner was asked to provide an opinion as to whether the Veteran’s condition was incurred during or is related to her active service. In the August 2020 VA examination, the examiner noted that the Veteran’s VA e-folder was reviewed in conjunction with the opinion provided. The examiner noted a current diagnosis of PCOS. The examiner opined that the Veterans’ PCOS was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran had no issues related to PCOS prior to her service. The examiner opined that the Veteran’s PCOS is related to Gulf War Syndrome. However, the Veteran did not have service in Southwest Asia. Given that the August 2020 VA opinion was based on the incorrect assumption that the Veteran had service in Southwest Asia, an addendum opinion was provided in November 2020. The examiner stated that PCOS is not considered a congenital disease or defect. He stated that the cause is not specifically known but noted that genetics may play a role. The examiner noted that there is no evidence that the Veteran had PCOS prior service. The entrance examination was noted as negative for any gynecologic irregularity. The separation examination was also noted as negative for any gynecologic irregularity. The examiner noted that the Veteran reported having some menstrual irregularity as an adolescent, but that there is no documentation of this. Nonetheless, the examiner stated that this does not constitute a diagnosis of PCOS since adolescent women commonly have menstrual irregularity during the first two years of their cycles. The examiner noted amenorrhea in-service. He stated that amenorrhea is a side effect of oral contraceptives. The examiner noted that the Veteran was not diagnosed with PCOS until April 1996. Given these facts, the examiner stated that there is no nexus between the Veteran’s PCOS and her service and there is no gynecologic irregularity or condition at separation. The examiner opined that it is less likely than not that the Veteran's PCOS had its nexus in-service. The examiner stated that there is no evidence to support a diagnosis of PCOS prior to her service, and that there is nothing in particular about her service that would have predisposed her to PCOS. The examiner opined that the Veteran, more likely than not, would have developed PCOS with or without her service. The examiner stated that if the Veteran had symptoms of PCOS predating service, the rationale as to the impact of her service, would not change. He stated that the Veteran’s PCOS appears to have followed the natural course, regardless of date of onset. The examiner opined that there is no evidence of aggravation of the Veteran’s PCOS beyond its natural course, even if her PCOS had existed prior to service, especially in view of the 1996 diagnosis. Given these facts, the Veteran’s PCOS is not considered a congenital defect. Thus, service connection for PCOS is not precluded under 38 C.F.R. §§ 3.303(c), 4.9, 4.127. Additionally, the Veteran’s January 1989 entrance examination does not show any indication of PCOS and clear and unmistakable evidence has not been shown which demonstrates that the Veterans PCOS preexisted her service. Thus, the Veteran is presumed to have been in sound condition with regard to her PCOS condition at service entrance. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Since clear and unmistakable evidence has not been shown that her PCOS preexisted her service, the presumption of soundness has not been rebutted with regard to her PCOS condition. See Wagner, 370 F.3d 1089. Although the Veteran believes that her PCOS is related to her service, she is not competent to provide an etiological opinion in this case. The issue is medically complex, as it requires specialized medical education. Jandreau, 492 F.3d 1372, 1377. (Continued on the next page.) In conclusion, the Veteran's service connection claim for PCOS must be denied. There was no in-service injury, event, or disease of which her PCOS is related, and the evidence does not establish that her PCOS had its onset within one year of a period of active service. Service connection for PCOS is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart 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.