Citation Nr: 21011037 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 13-09 566 DATE: February 26, 2021 ORDER Entitlement to service connection for fibrocystic breast disease, claimed as fibroid tumors in both breasts is denied. Entitlement to service connection for migraine headaches is granted. REMANDED Entitlement to service connection for a gynecological disability, claimed as painful and heavy menstruation, is remanded. Entitlement to service connection for anemia is remanded. Entitlement to service connection for idiopathic thrombocytopenia purpura is remanded. Entitlement to service connection for residuals of a splenectomy is remanded. Entitlement to service connection for an immune system disorder, claimed as a depressed immune systems, is remanded. Entitlement to service connection for a disability claimed as a lack of wellbeing and fatigue is remanded. Entitlement to service connection for alopecia is remanded. FINDINGS OF FACT 1. The Veteran had active duty service in the Southwest Asia theater of operations. 2. A current fibrocystic breast disease, claimed as fibroid tumors in both breasts, did not have its onset during service, is not due to an in-service disease or injury, did not manifest to a compensable degree within a year of service separation, and may not be presumed to result from an incident of service, to include service in the Persian Gulf. 3. The Veteran has a current diagnosis of migraine headaches which had their onset during active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for fibrocystic breast disease, claimed as fibroid tumors in both breasts, have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.317. 2. The criteria for entitlement to service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1989 to December 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). An appeal of these issues was subsequently perfected within VA’s legacy appeals system. In August 2019, the Veteran testified before a Veterans Law Judge. A transcript of this hearing has been added to the claims file. These issues were previously before the Board in May 2020, at which time they were remanded for additional development. They have now been returned to the Board. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service connection may also be established on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117 (2014); 38 C.F.R. § 3.317(a)(1). A Persian Gulf veteran is one who served in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e). The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). In this case, the Veteran's service personnel records confirm her service during the Persian Gulf War in the Southwest Asia Theater of operations. Accordingly, the Board finds the Veteran is a Persian Gulf veteran and the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 may apply if the Veteran is found to have a qualifying chronic disability. The term “qualifying chronic disability” means a chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome; fibromyalgia, or functional gastrointestinal disorders (including, but not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia). 38 C.F.R. § 3.317(a)(2)(i). For purposes of this presumption, the term “medically unexplained chronic multisymptom illness” means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). VA regulations clarify that “objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Additionally, disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). Signs or symptoms which may be manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, fatigue, signs or symptoms involving skin, headaches, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317(b). In claims based on undiagnosed illness, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Laypersons, such as the Veteran, are competent to report objective signs of illness such as pain or fatigue. Id at 9-10. To determine whether a qualifying chronic disability is manifested to a degree of 10 percent or more, the rating criteria set forth in the VA Schedule for Rating Disabilities shall be utilized. See 38 C.F.R. § 3.317(a)(5); 38 C.F.R. Part 4 (2019). Even where service connection cannot be presumed, service connection may still be established on a direct basis. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). 1. Entitlement to service connection for fibrocystic breast disease, claimed as fibroid tumors in both breasts The Veteran seeks service connection for a fibrocystic breast disorder, claimed as fibroid tumors of the breasts. She asserts such a disability had its onset in service, and service connection is therefore warranted. Considering first the service treatment records, the Veteran was without any noted abnormalities of the breasts upon examination for service entrance in August 1989. She was seen in May 1993 for a mobile mass in the left breast. Pain in the left breast was reported in June 1994. At that time, she reported a history of fibrocysts in the breasts. In May 1996, the Veteran was referred for a surgical consultation to assess pain and possible nodules of the bilateral breasts. A June 1996 consultation found no evidence of a conical mass in either breast. Post service, the medical evidence of record, including both VA and private treatment records, shows the Veteran has consistently complained of chronic pain in both breasts since service. A September 2001 private evaluation noted the Veteran’s complaints of left breast pain; however, an ultrasound found no evidence of a cystic or solid mass or other abnormality. A May 2003 ultrasound of the left breast indicated two masses, thought to be benign lymph nodes, in the breast tissue. No other cysts or masses were observed. Subsequent private mammograms and ultrasounds of the Veteran’s breasts were negative for cysts, tumors, or malignancies; she was noted, however, to have dense breast tissue which “may obscure an underlying neoplasm.” May 2008 and July 2009 VA mammograms found no definite clusters of microcalcifications, areas of architectural distortion, or discrete mammographic abnormalities. A March 2011 VA mammogram was also benign. On a September 2010 VA examination, a VA examiner stated there was no current mammographic or ultrasonography findings to confirm a current disorder of the breast. While subsequent sonograms and mammograms of the breasts have not revealed any malignancies and, as a result have been deemed normal, these studies have consistently revealed dense granular tissue in the breasts, which have been described as heterogenous and as dystrophic calcifications. Notably, examiners have observed abnormal thickness and masses in the Veteran’s breasts on clinical evaluation. Nevertheless, based upon the lack of evidence of fibrocystic growths or fibroid tumors of the breasts in service or for many years after service, the Board must conclude that any current breast disability did not have its onset in service and has not been chronic or continuous since that time. Moreover, because this disability is a known clinical diagnosis, it does not represent an undiagnosed illness or disability. The preponderance of the evidence is also against a finding that a current disorder of either breast is related to an in-service disease, injury, or other incident of service. On VA examination in August 2020 pursuant to the Board’s remand order, the Veteran was examined by a VA nurse practitioner. Her claims file was reviewed in conjunction with the examination. After examining the Veteran and reviewing the claims file, the examiner opined it was less likely than not a current disability of the breasts was incurred in or otherwise related to service. The examiner noted that upon the most recent in-service objective physical examination of the Veteran’s breasts, they were within normal limits. Post-service, the examiner also noted, the Veteran’s breasts were again within normal limits on diagnostic testing in 2001 and 2012. This lack of findings both in service and for several years thereafter suggested to the examiner that any current disability of either breast was unrelated to service and did not have its onset therein. The Veteran herself asserts her breast disability was incurred in service or is related to an in-service disease or injury. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, cystic disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran’s statements therein cannot be accepted as competent medical evidence. The Veteran is also not reporting an expert opinion as told to her, and her lay contentions have not subsequently been confirmed by a competent expert. In conclusion, the preponderance of the evidence is against the award of service connection for a disability of either breast, claimed as fibrocystic breast disease or fibroid tumors. Such a disability did not have its onset during service, is not due to an in-service disease or injury, and did not manifest to a compensable degree within a year of service separation. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 2. Entitlement to service connection for migraine headaches The Veteran seeks service connection for migraine headaches. She asserts this disability had its onset during service and has been chronic since that time, and service connection is therefore warranted. Considering first the service treatment records, the Veteran was without any noted headache disability or other neurological impairment when she was examined for service entrance in August 1989. In March 1990, the Veteran reported headaches, upset stomach, and dizziness for the past six weeks. Physical examination of the Veteran was grossly normal. The assessment was poor conditioning, and she was returned to duty. In February 1993, the Veteran reported headaches, nausea, coughing, sore throat, diarrhea, and hemorrhoids for the past 12 hours. A viral syndrome was diagnosed, and she was given medication. The Veteran sought treatment in September 1994 for cold symptoms, including a stuffy nose, rash, headache, and backache. On a November 1995 comprehensive clinical evaluation program examination, the Veteran reported a history of migraine headaches associated with stress. Post-service, the Veteran has reported periodic migraine headaches since service. In support of her claim, the Veteran submitted a September 2019 statement from a VA physician, who suggested the Veteran’s headaches were related to service. A rationale for this opinion was not provided, however. Nevertheless, the Veteran, though a layperson, is competent to report such observable symptomatology as headaches. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A more recent August 2020 VA examination and medical opinion determined the Veteran’s current migraine headaches were unrelated to service, as the service treatment records were negative for any diagnosis of or treatment for headaches. This opinion is of limited probative value, however, given that the service treatment records do in fact indicate complaints of migraine headaches while on active duty. Affording the Veteran the benefit of the doubt, the Board finds both that headaches, including migraine headaches, were reported on several occasions during service, and that the Veteran has provided competent and credible testimony regarding the continuity of this symptomatology. Thus, service connection for migraine headaches is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a gynecological disability, claimed as painful and heavy menstruation is remanded. 2. Entitlement to service connection for anemia is remanded. The Veteran seeks service connection for a gynecological disability characterized as painful and heavy menstruation. This issue was previously remanded in May 2020 in order to afford the Veteran a VA medical examination and opinion. Unfortunately, another remand is required. As was noted in the prior Board remand, the Veteran sought treatment during service in July 1991 for menstruation cramps. She was noted to have a history of severe menstruation cramps; however, she stated that the pain did not feel like cramps. She was given ice bags and told to rest as needed. In May 1992, the Veteran delivered a healthy infant via cesarean section. In January 1995, the Veteran was seen for dyspareunia and vaginal spotting. The etiology of these symptoms was undetermined. The Veteran was seen in February 1997 for a vaginal discharge. Vaginitis was diagnosed. An August 2020 VA examination and medical opinion was afforded the Veteran. Upon examination of the Veteran and the record, the examiner opined that it was less likely than not any current gynecological disability was related to service, noting that the Veteran was seen on only a single occasion for a gynecological disorder. The examiner did not address or discuss the Veteran’s other gynecological treatment in service, to include her pregnancy and delivery, or the subsequent diagnosis of vaginitis. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). An additional remand is therefore required. The Veteran also seeks service connection for anemia, claimed as secondary or otherwise related to her gynecological. As such, adjudication of this claim must also be deferred, as this issue is inextricably-intertwined with an issue being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991). 3. Entitlement to service connection for idiopathic thrombocytopenia purpura is remanded. 4. Entitlement to service connection for residuals of a splenectomy is remanded. 5. Entitlement to service connection for an immune system disorder, claimed as a depressed immune systems is remanded. 6. Entitlement to service connection for a disability claimed as lack of wellbeing and fatigue is remanded. The Veteran seeks service connection for idiopathic thrombocytopenia. This issue was previously remanded in May 2020 for a VA examination and medical opinion. Such an examination was afforded the Veteran in August 2020. In rendering an opinion regarding the Veteran’s idiopathic thrombocytopenia, the VA examiner determined that this disability was unrelated to active duty service in the Persian Gulf region. The examiner further opined that according to the medical literature, idiopathic thrombocytopenia can occur on its own or be triggered by chronic infection, medications, or pregnancy. The Board notes that the Veteran became pregnant during active duty service, and successfully delivered an infant in July 1992. As the examiner did not further discuss whether the Veteran’s in-service pregnancy caused or aggravated her idiopathic thrombocytopenia, an additional medical opinion is necessary. The Veteran has further asserted that her splenectomy and immune disorder are related to her idiopathic thrombocytopenia. As such, adjudication of these claims must also be deferred, as these issues are inextricably-intertwined with an issue being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Regarding her claimed disability characterized by a lack of wellbeing and fatigue, a VA examiner opined in an August 2020 VA examination report that these symptoms are likely the result of her idiopathic thrombocytopenia. Thus, this issue is also inextricably-intertwined with an issue remanded above. Id. 7. Entitlement to service connection for alopecia is remanded. The Veteran seeks service connection for alopecia (hair loss). This issue was previously remanded by the Board for a VA medical examination and opinion. While such an examination with medical opinion was afforded the Veteran in August 2020, the Board finds the provided opinion inadequate. Specifically, the examiner concluded the Veteran’s current hair loss was unrelated to service, as no such disorder was shown in service. This finding is incorrect, however; the Veteran sought treatment in May 1996 for “hair breaking off” or not growing on the back of her scalp. She reported a history of perms and hair straightening, but denied any hot oil treatments. A family history of hair loss in both parents was reported. The impression was of possible hair fracture, and she was sent for laboratory testing and further evaluation. On dermatological consultation, the Veteran’s lab findings were within normal limits. No diagnosis of a hair or scalp disorder was rendered at that time. Nevertheless, because the August 2020 VA opinion was based on a lack of in-service findings, an inaccurate factual predicate, a new opinion is required. The matters are REMANDED for the following action: 1. Request an addendum opinion from an expert in gynecological disabilities regarding the Veteran’s gynecological disability, claimed as painful and heavy menstruation. The Veteran need not be scheduled for in-person examination unless such examination is found necessary by the examiner. Following a review of the complete record, the examiner is asked to address the following: (a) Identify all disabilities manifested by painful and heavy menstruation shown during the appeal period, i.e., since March 2010. (b) For each identified disability, the examiner is asked to opine whether it is at least as likely as not (50 percent or more probability) that the disability had its onset during or is otherwise related to the Veteran's military service, to include the complaints of prolonged bleeding and severe cramps during service. In answering the foregoing, the examiner may wish to address the onset and progression of the Veteran's complaints and disability, to include the post-service diagnoses and treatment of menometrorrhagia with abnormal uterine bleeding, uterine fibroids, and total hysterectomy. However, in answering the foregoing, the examiner must consider and address the service treatment records, the post-service medical evidence, and the Veteran's competent lay statements regarding the nature of her claimed disability. A complete, clearly-stated rationale must be provided for each opinion offered. 2. Request an addendum opinion regarding the etiology of Veteran’s idiopathic thrombocytopenia. The Veteran need not be scheduled for in-person examination unless such examination is found necessary by the examiner. Following a review of the complete record, the examiner is asked to state whether it is at least as likely as not the Veteran’s idiopathic thrombocytopenia had its onset in service, or whether this disorder is due to or was aggravated by any disease, injury, or incident in service, to include her 1992 pregnancy during active duty service. A complete rationale must be provided for any opinion offered. The examiner must consider and address all lay and medical evidence of record with respect to the onset and progression of the Veteran’s various symptoms. 3. Request an addendum opinion regarding the etiology of Veteran’s alopecia. The Veteran need not be scheduled for in-person examination unless such examination is found necessary by the examiner. Following a review of the complete record, the examiner is asked to state whether it is at least as likely as not the Veteran’s alopecia had its onset in service, or whether this disorder is due to or was aggravated by any disease, injury, or incident of service, to include her service in the Persian Gulf theater. A complete rationale must be provided for any opinion offered. The examiner must consider and address all lay and medical evidence of record with respect to the onset and progression of the Veteran’s hair loss. 4. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claims in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and her representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thomas D. Jones, 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.