Citation Nr: 21010266 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 16-19 396 DATE: February 24, 2021 ORDER Entitlement to service connection for allergic rhinitis is denied. Entitlement to service connection for myomectomy cystic fibroids (MCF) is denied. REMANDED Entitlement to service connection for plantar fasciitis is remanded. Entitlement to service connection for left lower extremity radiculopathy is remanded. Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. Entitlement to disability ratings for posttraumatic stress disorder (PTSD) in excess of 30 percent prior to January 19, 2016, in excess of 50 percent from January 19, 2016 to December 16, 2019, and in excess of 70 percent thereafter is remanded. Entitlement to disability ratings for lumbosacral strain in excess of 10 percent prior to January 19, 2016 and in excess of 20 percent thereafter is remanded. Entitlement to a compensable disability rating prior to January 19, 2016 and in excess of 10 percent thereafter for left retropatellar pain syndrome with traumatic arthritis is remanded. Entitlement to a compensable disability rating prior to January 19, 2016 and in excess of 10 percent thereafter for right retropatellar pain syndrome with traumatic arthritis is remanded. Entitlement to a disability rating in excess of 10 percent for left foot strain is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s allergic rhinitis was not aggravated by her military service. 2. The Veteran’s MCF was not caused by or related to her military service. CONCLUSIONS OF LAW 1. The criteria for service connection for allergic rhinitis have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. 2. The criteria for service connection for MCF have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on a period of initial active duty for training from November 1988 to March 1989 and on active duty from January 1998 to September 1998. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing with the undersigned in August 2016. In January 2021, the Veteran’s attorney waived RO review of evidence added to the file since the last adjudication. The issues of entitlement to service connection for IBS and left lower extremity radiculopathy, a disability rating in excess of 10 percent for lumbosacral strain prior to December 19, 2013, and a disability rating in excess of 30 percent for PTSD prior to January 19, 2016 were subject to a joint motion for partial remand (JMR) agreed to by the parties and approved by the United States Court of Appeals for Veterans Claims (Court) in February 2020. The Board previously remanded a claim for service connection for hemorrhoids. As that claim was granted in full on remand, it is no longer in appellate status. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Allergic rhinitis. Generally, a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304(b). Such conditions are considered to be pre-existing. When a pre-existing disorder is noted on entry, a veteran has the burden of showing that it is at least as likely as not that the disorder increased in severity during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). If a veteran meets that burden and shows that an increase in severity occurred, the burden then shifts to VA to show whether such increase is clearly and unmistakably due to the natural progression of the pre-existing disability rather than due to service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 235 (2012); C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). Service treatment records show that the Veteran suffered from allergic rhinitis in August 1994, prior to her active duty period. The Veteran claims that her service in Bosnia-Herzegovina in 1998 aggravated her allergic rhinitis. On separation from that period of service, in September 1998, evaluation of the nose and sinuses was normal. The Veteran underwent a VA examination in April 2014. The examiner opined that it was at least as likely as not that the Veteran’s allergic rhinitis was related to her military service, but the examiner did not provide a rationale for this opinion; thus, it is of no probative value. In June 2016, the Veteran submitted a private opinion that stated it was more likely than not that her allergic rhinitis was caused by her service in Bosnia-Herzegovina. The examiner stated that prolonged exposure to certain particles that are ingested into the body through the lungs can lead to numerous medical conditions. This examiner did not address the fact that the Veteran’s allergic rhinitis preexisted her military service or provide an opinion on aggravation, nor did the examiner specifically indicate how the Veteran’s allergic rhinitis was related to service. Of note, the letter addressed multiple disabilities and was general in nature. As such, the opinion is of no probative value. Finally, the Veteran underwent a VA examination in January 2020. The examiner opined that it was less likely than not that her allergic rhinitis was aggravated beyond normal progression by her service as her continued symptoms during deployment would be expected given her prior history. The Board finds that the most probative evidence is against service connection. Although the Veteran’s private opinion relates her allergic rhinitis to her service, the examiner was apparently not aware that her allergic rhinitis preexisted her military service and did not provide an opinion regarding aggravation. The most probative opinion is that of the January 2020 VA examiner who reviewed the claims file and opined that the Veteran’s allergic rhinitis did not increase in severity during service. As such, service connection is denied. 2. MCF The Veteran contends that she developed MCF in service. Service treatment records are silent for MCF. The Veteran was first diagnosed with uterine fibroids in December 2000. In February 2014, the Veteran’s mother submitted a lay statement stating the during service the Veteran suffered from heavy bleeding, pain, cramping, and blood clots. She stated that there was not a gynecologist that the Veteran could see and that she did not suffer from these issues prior to service. In April 2014, a fellow solider recounted that the Veteran developed gynecological issues in service, including gynecological hemorrhage. The Veteran underwent VA examination in April 2014 and was diagnosed with MCF. The Veteran reported that her condition began in 1998 and had continued since then. The examiner opined that the Veteran was seen on June 2000 for uterine fibroids and December 2000 for a routine examination of the pelvis that showed enlarged uterus with multiple intramural lesions which are non-specific but consistent with uterine fibroids. He reported that the Veteran was diagnosed April 2014 with status post MCF. The examiner reported that the Veteran had fibroids in service resulting in myomectomy. He reported the claimed disability was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. This opinion is afforded no probative value as it is based, at least in part, on an inaccurate factual premise. The evidence does not reflect that the Veteran had fibroids in service and the treatment for uterine fibroids in June and December 2000 did not occur during a period of active duty service. In June 2016, the Veteran submitted a private opinion that stated that her MCF is related to her military service. While the physician stated that prolonged exposure to certain particles that are ingested into the body through the lungs can lead to numerous medical conditions and that traumatic events leading to psychological trauma can lead to numerous other medical conditions, she did not explain why this Veteran’s MCF was related to her particular service. Notably, the letter addressed several disabilities and does not specifically list the cause of the MCF or explain why it is related to the Veteran’s service. As such, the opinion is afforded lesser probative weight. The Veteran testified in her August 2016 hearing that she did not suffer from gynecological issues prior to service and that they developed in service. The Veteran underwent a VA examination in January 2020 where the examiner stated that the Veteran’s MCF is not related to her military service. The examiner stated that the Veteran reported irregular menstrual cycles and treatment for a female disorder during her 1998 separation examination but that these symptoms had resolved as she did not report any issues when asked in February 1999. There was no report of menstrual issues again until March 2000. According to the examiner, given that the Veteran reported normal cycles six months after service and there were no other complaints until almost two years after her separation, it is less likely than not that the Veteran’s MCF is related to her service. This opinion is afforded high probative value as it was made by a medical professional after examination and interview of the Veteran and is based on the specific facts in this case applied to the examiner’s medical knowledge. The Board finds that the evidence does not warranted service connection for MCF. Although the Veteran reported menstrual issues in service, her service treatment records are silent for any complaints, treatment, or diagnosis of MCF in service. Further, as stated by the January 2020 VA examiner, the Veteran did not report any issues six months after service. The Veteran was not diagnosed with uterine fibroids until almost two years after her military service. The lay statements have been considered and are not in significant conflict with the VA examiner’s opinion, which the Board finds to be the most probative evidence as to the etiology of the Veteran’s MCF. As such, service connection is denied. REASONS FOR REMAND 1. Missing Records. The February 2020 JMR identified missing records, including treatment records from Digestive Health Associates of Texas and from Dr. Deelee at Ortho Texas Clinic. Given that these outstanding records may be relevant to the claims for service connection for IBS and left lower extremity radiculopathy, the ratings assigned for orthopedic disabilities –including the lumbosacral strain, knee disabilities, and left foot disability – and the TDIU claim, these claims must be remanded. The record also reflects that the Veteran received treatment for PTSD through the Military Family Clinic at Metrocare. VA does not appear to have all relevant records from this facility. As such, the claim for higher ratings for PTSD must be remanded as well. In September 2020, the Veteran was notified that VA was unable to obtain records from Allen Orthopedics and Sports Medicine, Alpha Orthopedics and Sports Medicine, and Dr. Cattorini, although the Board notes some records from Dr. Cattorini were received in November 2019 and March 2014. The notification of the unavailability of the records did not explain to the Veteran that she is ultimately responsible for providing the evidence. See 38 C.F.R. § 3.159(e)(1)(iv). On remand, these records should be obtained or the Veteran should be provided proper notification of their unavailability. 2. Service connection for plantar fasciitis. The Board finds that remand is necessary for an addendum opinion. A January 2020 VA examiner stated that the Veteran’s plantar fasciitis was not related to her military service as there was no documentation of right foot pain in service, and that given there is no documentation of pes planus in service, it is less likely that this contributed to her development of plantar fasciitis. The examiner also listed risk factors of plantar fasciitis as prolonged standing or jumping. The Veteran is not claiming that her pes planus contributed to her plantar fasciitis. She is claiming that due to extensive walking in boots and carrying heavy equipment she developed foot pain and plantar fasciitis. Her service treatment records show that she suffered from foot pain from her boots. As such, remand is necessary to obtain an opinion regarding whether her foot pain in service as well as her boots and heavy equipment caused her to develop plantar fasciitis. 3. Disability ratings for left and right knee disabilities. Remand is also necessary to obtain a new examination. The Veteran has identified additional symptoms such as her knees giving way and falling that were not present at her last examination. The matters are REMANDED for the following action: 1. With the Veteran’s assistance, obtain any outstanding treatment records to include updated records from VA facilities. The Veteran should specifically be asked to provide, or identify and authorize VA to obtain, records from Digestive Health Associates of Texas, Dr. Deelee at Ortho Texas Clinic, and the Military Family Clinic at Metrocare. If any records are determined to be unavailable, the Veteran should be properly notified. This includes identifying the records VA was unable to obtain, an explanation of the efforts VA made to obtain the records, a description of any further action VA will take regarding the claims, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain, and notice that the claimant is ultimately responsible for providing the evidence. 2. Obtain records from Allen Orthopedics and Sports Medicine, Alpha Orthopedics and Sports Medicine, and Dr. Cattorini, or provide the Veteran with proper notification of the unavailability of these records. If any records are determined to be unavailable, the Veteran should be properly notified. This includes identifying the records VA was unable to obtain, an explanation of the efforts VA made to obtain the records, a description of any further action VA will take regarding the claims, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain, and notice that the claimant is ultimately responsible for providing the evidence. 3. After records development is completed, any additional records added to the file should be reviewed and consideration should be given to whether the records require VA to obtain additional examinations or medical opinions. 4. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current plantar fasciitis onset during service or is otherwise related to an in-service injury, event, or disease, to include as due to extensive walking in boots and carrying heavy equipment. It is noted that service records show complaints at separation of current left foot pain as well as previous foot pain from boots. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 5. After records development is completed, schedule the Veteran for a VA knee examination to determine the current symptoms, level of severity, and functional impairment associated with her knee disabilities. The claims file should be reviewed by the examiner. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Hofmeister, Attorney Advisor 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.