Citation Nr: 21014226 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-48 926 DATE: March 11, 2021 REMANDED Entitlement to service connection for residuals of a left ovarian cyst, status post left salping oophorectomy, previously characterized as vaginal cysts, is remanded. Entitlement to service connection for residuals of a right breast lumpectomy, claimed as a breast condition, is remanded. Entitlement to service connection for back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1986 to May 1987 and the United States Air Force from July 1995 to May 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at an April 2019 hearing before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. During testimony, the Veteran indicated that her claim was for removal of the left ovary due to a cyst. The claim for service connection for vaginal cysts has been recharacterized accordingly. The claim for a breast condition has been likewise recharacterized to more adequately reflect the Veteran’s contentions. In September 2019, the Board remanded the Veteran’s claim for entitlement to service connection for a back disability and denied service connection for residuals of a left ovarian cyst and a breast condition. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the matter to the Board. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for residuals of left ovarian cysts. The Veteran contends her current residuals of left ovarian cysts is a continuation of cysts discovered and treated in service. See Hearing Transcript (August 2019). To ensure that VA has met its duty to assist, the claim must be remanded for further development. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the medical evidence of record is inadequate to decide the appeal. Service treatment records (STRs) show the Veteran was diagnosed with right ovarian cysts in in December 1995 and a probable small follicular/sebaceous cyst on the right labia in May 1996. The Veteran was separated from service due to pregnancy in May 1997 and continued to receive treatment from military service medical providers. See Hearing Transcript (August 2019); see also STR (May 1997). A multi cystic right ovary was noted in August 1998; reduction in size was noted in April 1999. Imaging of the left ovary in August 1998 showed it to be within normal limits; no cysts were noted. Post-service, private treatment records show the Veteran was treated for diagnosed left ovarian cysts in May 2005 and underwent a hysterectomy with left ovary removal (salping oophorectomy). See Medical Treatment Record - Non-Government Facility (October 2016). While the Veteran has undergone a VA examination in March 2013, the Board finds that it inadequate. First, the opinion is at least in part based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 460-61(1993) (medical opinion based on inaccurate factual premise may properly be rejected as non-probative). Here, the opinion incorrectly noted that the Veteran was diagnosed with “two small simple cysts” in the right ovary around 1995,” but “there is no record to determine what was the pre-o[p]erative diagnosis resulting in removal of the uterus and ovary.” However, the Veteran’s claims file contains evidence regarding the conditions that led to the 2005 ovary removal and hysterectomy, including a May 2005 private medical record diagnosing the Veteran with “pelvic pain,” “left ovarian mass,” and “menometrorrhagia.” See Medical Treatment Record - Non-Government Facility (October 2016). Second, the opinion provides little to no rationale for the conclusions as it reflects consideration of various pieces of medical evidence, but does not include a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). For instance, the examiner opined that the “left salpingoophorectomy and hysterectomy is not caused by any diagnosed condition during her active duty service,” and that “regardless [of] the diagnosis in 2005, HPV and small cyst <1cm with which she was diagnosed as in 1995 would not be causally related to the heavy bleeding or left ovarian mass.” The opinion provides no rationale for that conclusion. Third, the March 2013 VA examination is inadequate because it did not explain how the general medical research applied to the Veteran’s particular circumstances. See Bailey v. O’Rourke, 30 Vet. App. 54, 60 (2018) (in cases involving herbicide exposure and cancer, examiner’s rationale may not be based solely on general medical articles); Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (although general medical research may be considered, it cannot be the sole basis for examiner’s conclusion). Specifically, the March 2013 VA examiner observed that “HPV infections usually resolve spontaneously in 90% of infected women and reverts to normal cervical histological exam. Ovarian simple cysts are physiologic and resolve with cycles.” The opinion, however, did not explain how the statistical information applied to the Veteran’s case, resulting in an inadequate medical opinion. Thus, to ensure that VA has met its duty to assist, remand is necessary. 38 C.F.R. § 3.159(c). 2. Entitlement to service connection for a breast condition. The Veteran contends that breast discharge in service was an early manifestation of a later diagnosed, nonmalignant lump. See Hearing Transcript (August 2019). The Veteran testified that she was informed by military medical personnel that she had abnormal breast tissue and would have to be followed due to a family history of breast cancer. Id. As a preliminary matter, the Board notes that STRs show the Veteran had bloody discharge from the bilateral breasts beginning March 1997 at 23 weeks pregnant. See Medical Treatment Record (STR) (May 1997). The Veteran had dense fibroglandular tissue, but no discrete masses or thickening, adenopathy, or skin or nipple lesions were noted on examination. Id. On follow-up, the Veteran was diagnosed with probable physiological ductal ectasia. Id. Although a March 2013 VA examination was obtained, it provides insufficient findings. First, the report shows that Veteran did not have a diagnosis of any disorder of the breast. See VA Examination (March 2013). Importantly, service connection may be granted for a disability shown and resolved during the appeal period. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the “current disability” requirement is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim” and reversing Board’s denial of service connection where disability resolved itself during pendency of appeal). Notably, a June 2013 mammography screening shows that the Veteran has a history of palpable lumb in the right breast. A July 2013 mammogram and ultrasound showed interval development of two lesions in the right breast when compared to mammograms from May 2011 and June 2012. See Medical Treatment Record (October 2016). A biopsy later that month showed the Veteran had fragments of fibroadenoma in the right breast. Id. The lesions were removed in February 2014. Id. A March 2013 VA examination itself noted a few “lumpy bumpy areas around [the] nipple bilaterally without discrete masses” and suggested that “most likely this is costochondritis.” Subsequent to the March 2013 VA examination, additional treatment records show a right breast diagnosis of “[f]ragments of fibroadenoma, cellular variant,” “Microcalcifications,” and “Cystic change, apocrine metaplasia, stromal sclerosis and usual ductal hyperplasia” in July 2013. See Medical Treatment Record - Non-Government Facility (October 2016). Second, the March 2013 VA examination provided no etiological opinion based on its finding of no diagnosis. However, given that the Veteran has been diagnosed with a breast condition during the appeal period, such is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Given the above, the medical opinion is inadequate, and the Board must remand the claim for a new opinion to determine the etiology of the Veteran’s breast condition. See Barr, supra. 3. Entitlement to service connection for a back disability. The Veteran contends that her current back disability is caused by a motor vehicle accident (MVA) in service. See Hearing Transcript (August 2019). She argues, and reports she was told by a doctor, that her condition is the progression of her in-service back injury. Id. She reports continuous back pain from the 1996 MVA to the present. In its September 2019 remand, the Board noted that the Veteran is a nurse and competent to diagnose lumbar strain, which is generally accepted as not a complex diagnosis. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). As explained below, there has not been substantial compliance with the Board’s prior remand directives. By way of background, STRs show the Veteran was diagnosed with lumbar spine strain following an August 1996 MVA. See STR-Medical (May 1997). On examination, she was in no apparent distress, had a normal gait, and her pain was resolving. Id. In January 1997, the Veteran was treated for minimal lumbar tenderness with an unknown trigger diagnosed as low back strain, and resolving symptoms two days later. Id. In its September 2019 remand, the Board found that the March 2013 opinion (1) failed to adequately address the Veteran’s lay statements regarding continuous back pain since basic training or identify an alternative etiology, and (2) was based on an inaccurate medical history. See (BVA September 2019). The Board finds the March 2020 VA medical opinion to be inadequate for adjudicative purposes. In assessing the probative weight given to a medical opinion, the Board must consider whether it is based on sufficient facts or data; the product of reliable principles and methods; and the result of principles and methods reliably applied to the facts. See Nieves-Rodriguez, supra; see also Hayes v. Brown, 5 Vet. App. 60, 69 (1993) (although all medical opinions constitute medical conclusions that the Board cannot ignore or disregard, the Board is not obligated to accept any examiner’s opinion). First, the medical opinion is inadequate because there is insufficient rationale in concluding that the Veteran’s back disability is not related to service. The medical opinion, in this case, made no attempt to explain why the Veteran’s back disability, to include lumbosacral strain and intervertebral disc syndrome (IVDS), was not caused by her service and the in-service 1996 MVA, and did not indicate review or address the specific contentions as to the causes of her back disability. Second, along the same lines, the opinion does not account for the Veteran’s reports of back pain since service, despite the Board’s previous instructions to do so as well as the Bord’s notation that the Veteran’s is a nurse and therefore competent to diagnose lumbar strain. See Stegall, supra. The March 2020 VA examination did not address the Veteran’s reports of back pain that has been worsening since the 1996 in-service MVA and based his opinion on the absence of “objective medical information.” See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) (“the VA examiner’s failure to consider [a veteran’s] testimony when formulating her opinion renders that opinion inadequate”). Generally, a claimant is competent to attest to observable symptomatology and, if rejected or found unpersuasive in view of other facts, this must be explained. The opinion does not reflect consideration of the Veteran’s lay statements, including her reports worsening back condition over time. See C&P Exam (March 2020). Third, the examination findings were based on the absence of documented treatment for back disability several years after service. However, it does not explain in any meaningful way why the currently shown back disability is not at least as likely as not caused by or the result of the Veteran’s service and, in particular, her 1996 MVA as well as additional reports of back pain on at least two occasions in January 1997 with assessments of low back strain and mechanical back pain as well as minimum lumbar tenderness. See STR-Medical (May 1997); Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). It is noted that a medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. Fourth, the March 2020 VA medical opinion is based on an inaccurate factual premise. See Reonal, supra. Specifically, the opinion made no mention of the Veteran’s reports of pain during service in January 1997 on at least two occasions, and was instead based on “only one complaint is noted while in service during those years for low back pain.” Thus, the opinion on remand should address the documented January 1997 reports of low back strain, mechanical back pain and lumbar tenderness. Fifth, the March 2020 VA medical opinion did not provide adequate reasons for asserting that a medical opinion would be speculative. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner’s assertion that “objective medical information” was necessary to render a non-speculative opinion regarding the back disability ignores the Board’s September 2019 remand instructing the examiner to address the Veteran’s reports, including her lay statements, of back pain. For these reasons, the matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s residuals of left ovarian cysts. The examiner must opine if it is as least as likely as not (50 percent probability or more) that the residuals of left ovarian cysts had their onset in service or are otherwise related to service. Please explain why or why not, specifically discussing (1) the symptoms; (2) the significance, if any, of a December 1995 STR diagnosing right ovarian cysts and a May 1996 STR showing a probable small follicular/sebaceous cyst on the right labia; and (3) the Veteran’s annotated in-service May 1995 report of small nodule on right labia major. Note that the Veteran is competent to report her symptoms, treatment, and injuries, and that her reports must be taken into account in formulating the requested opinion. If an opinion cannot be expressed without resort to speculation, discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints/findings for residuals of left ovarian cysts. If another etiology is the more likely cause, the clinician must provide a complete explanation of his or her reasoning. NOTE (2): The clinician is required to fully explain why he or she disagrees with the Veteran’s theory of causation or rejects any history provided. 2. Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s breast condition. The examiner must opine if it is as least as likely as not (50 percent probability or more) that the breast condition had its onset in service or is otherwise related to service. Please explain why or why not, specifically discussing (1) the symptoms; and (2) the significance, if any, of STRs showing bloody discharge from the bilateral breasts beginning March 1997 at 23 weeks pregnant, dense fibroglandular tissue, but no discrete masses or thickening, adenopathy, or skin or nipple lesions, and in-service assessment of probable physiological ductal ectasia. Note that the Veteran is competent to report her symptoms, treatment, and injuries, and that her reports must be taken into account in formulating the requested opinion. If an opinion cannot be expressed without resort to speculation, discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints/findings for breast condition. If another etiology is the more likely cause, the clinician must provide a complete explanation of his or her reasoning. NOTE (2): The clinician is required to fully explain why he or she disagrees with the Veteran’s theory of causation or rejects any history provided. 3. Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of any back disability. The examiner must opine whether it is at least as likely as not related to (a) an in-service injury, event, or disease, including a 1996 MVA, or (b) intercurrent causes, including the Veteran’s 2002 injury at work. The examiner must address two January 1997 assessments of low back strain and mechanical back pain as well as minimum lumbar tenderness. A complete medical history should be obtained; if any medical history is rejected, the examiner must fully explain why. A complete rationale is required. To the extent there is arthritis, opine on whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints/findings for back disability. If another etiology is the more likely cause, the clinician must provide a complete explanation of his or her reasoning. NOTE (2): The clinician is required to fully explain why he or she disagrees with the Veteran’s theory of causation or rejects any history provided. 4. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.