Citation Nr: 21014412 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 15-25 666 DATE: March 12, 2021 REMANDED Entitlement to service connection for a gynecological disorder, to include endometriosis, recurrent vaginal infections, and urinary incontinence is remanded. Entitlement to service connection for a sleep apnea, to include as secondary to a service-connected back disability is remanded. REASONS FOR REMAND The Veteran had active service from December 1992 to June 1994. This case was remanded by the Board in September 2018 and August 2020 for additional development. In August 2013, the Veteran appointed Collin A. Douglas as her representative via an executed VA Form 21-22a. In a January 2021 letter Mr. Douglas attempted to withdraw his representation of the Veteran. However, the representation has not been withdrawn in accordance with 38 C.F.R. § 20.608(b). Once an appeal has been certified to the Board, a representative may not withdraw without showing good cause through a written motion that complies with the criteria set forth in 38 C.F.R. § 20.608 (b)(2). Here, the representative submitted a withdrawal after certification of the appeal to the Board and did not provide good cause reasons for doing so. Absent proper compliance with the directives, set forth by 38 C.F.R. § 20.608 (b)(2), the withdrawal of representation is not accepted as valid. The Veteran has not appointed a new representative therefore, Mr. Douglas remains the appointed representative. gynecological disorder The Veteran seeks service connection for gynecological disorders claimed as uncontrolled vaginal infections and urinary incontinence. She states that she had a problem with recurrent yeast infections/vaginitis as a result of “compression” from her service uniform and that she was diagnosed with endometriosis while in the military. The Veteran also states that she “was out on water for hours pulling ships in” and had to hold her bladder for hours. See VA Women’s Health Annual Evaluation Note, dated May 11, 2013 and Gynecological Conditions Disability Benefits Questionnaire (DBQ), dated December 6, 2014. As noted in previous remands, the issue of whether the Veteran has a gynecological disorder that preexisted service has been raised by the record. Notably, upon entrance to service in July 1992, her report of medical examination indicates normal findings on genitourinary examination. In the accompanying report of medical history, she reported a history of being treated for a female disorder, as well as a history of changes in her menstrual pattern. A notation states the Veteran experienced metrorrhagia between the ages of 17 and 19. The Veteran appeared for VA examination in May 2013. At that time, the examiner diagnosed resolved syphilis and changes in menstrual pattern. The examiner opined that it was less likely than not that the Veteran’s gynecological condition was incurred in or caused by service, as the Veteran had changes in menstrual patterns before she entered the service, while she was in the military, and after she left the military service. In December 2014, a VA examiner conducted a review of the claims folder in conjunction with a telephone interview with the Veteran. The examiner diagnosed a vaginal condition and opined that it was less likely than not incurred in or caused by service, as the Veteran had changes in menstrual patterns before she entered the service, while she was in the military, and after she left the military service. The examiner further opined that the military did not worsen or hasten or the natural progression of the disease. The Veteran was afforded another VA examination in April 2019. After a review of the file and examination of the Veteran, the examiner concluded the Veteran had endometriosis prior to military service as noted in her medical records. The examiner also determined that the endometriosis had been aggravated by the stress of Veteran’s military duties pushing, pulling, and lifting heavy objects and as a result she developed urinary incontinence. The examiner also found the urinary incontinence is directly related to military service, as the Veteran did not have it prior to military service. However, the Board finds the examination report inadequate, as it is contradicted by the actual service treatment records which do not contain diagnoses for endometriosis or urinary incontinence. An addendum opinion was obtained in November 2020. After a review of the file the examiner concluded the Veteran’s incontinence was less likely incurred in or caused by an in-service injury, event, or illness. It was explained that sexually transmitted diseases (STD) and urinary tract infections (UTI), which were both documented during service, can have urinary symptoms, but incontinence was not documented during service, including at separation. The examiner concluded that the incontinence existed prior to service and was not aggravated by service; but later stated incontinence was not diagnosed prior to service. The examiner also failed to address whether the Veteran’s history of recurrent yeast infections/vaginitis during service represented a chronic gynecological disorder or if there is a nexus between those symptoms and the endometriosis. Unfortunately, the medical opinions of record do not provide a clear picture of any relationship between the Veteran’s gynecological problems and her military service, including whether a gynecological disorder preexisted service and became appreciably worse during service beyond its natural progression. Therefore, another medical opinion is needed. sleep apnea The Veteran contends that her back spasms have caused sleep impairment. A review of the competent lay and medical evidence reveals that she has consistently complained that her back condition impairs her ability to sleep. See VA treatment record dated March 2011; see also lay statements dated September 2012 and November 2013. The Veteran is service connected for degenerative arthritis lumbar spine currently rated as 10 percent disabling. A May 2019 polysomnography shows obstructive sleep apnea and repetitive intrusions of sleep. The Veteran was afforded a VA examination in April 2019. The examiner provided an opinion that the Veteran’s sleep apnea was due to her service-connected disability. The examiner referred to medical literature stating that supports this single-lesion pathologies of the spine causing sleep apnea include osteochondromas, osteophytes, and other rare pathologies. Furthermore, misalignment pre-and post-back injury and/or surgery may predispose one to sleep apnea. Pathologies of the spine present significant additional etiologies for producing obstructive sleep apnea in select patient populations. Knowledge of these entities and their pathophysiologic mechanisms is informative for the clinician in diagnosing and managing sleep apnea in certain populations. An addendum opinion was obtained in November 2020. After a review of the file the examiner concluded the 2019 medical opinion was in error and that orthopedic lumbar conditions do not cause sleep apnea as they are not medically related. It was explained that sleep apnea is an entirely separate entity from the lumbar spine condition and unrelated to it. Moreover, a thorough review of medical literature failed to demonstrate a causal relationship. Citing to online medical resources, the examiner noted that sleep apnea can be caused by a person’s physical structure or medical conditions, including obesity, large tonsils, endocrine disorders, neuromuscular disorders, heart or kidney failure, certain genetic syndromes, and premature birth. However, the examiner did not specifically address whether the Veteran’s lumbar spine disorder aggravated her sleep apnea. These opinions do not assist the Board in making a determination; on remand, an addendum opinion must be obtained that reconciles the conflicting findings and contains a thorough rationale. The matters are REMANDED for the following action: Return the file to the VA examiner who provided the November 2020 VA opinions, if available. Otherwise, provide the record to another examiner who will have an opportunity to review the complete file. The need for an additional examination is left to the discretion of the medical professional offering the addendum opinion. In that case, such examinations should be scheduled and may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The examiner must explain the underlying rationale for all opinions expressed, citing to supporting factual data/medical literature, as deemed indicated. If the examiner cannot render an opinion without resorting to mere speculation, a full and complete explanation for why an opinion cannot be rendered should be provided. With respect to the gynecological disorder: While review of the entire claims file is required, the examiner should carefully consider a) the report of changes in menstrual pattern and metrorrhagia noted at enlistment in July 1992; b) the in-service treatment for multiple gynecological problems including recurrent UTIs, recurrent vaginal/yeast infections, and STDs; c) the report of changes in menstrual pattern noted at separation in July 1992; d) the various gynecological diagnoses of record, including metorrahagia, menorrhagia, dysmenorrhea, adenomyosis, endometriosis, and urinary incontinence; and e) VA medical opinions from May 2013, December 2014, April 2019 and November 2020. The examiner should then identify all current gynecological disorders, even if they have since resolved. He/She should then determine whether there is there clear and unmistakable evidence (undebatable) that the Veteran had a gynecological disorder that preexisted service and point to the specific clear and unmistakable evidence relied upon. For any preexisting gynecological disorder, the examiner should then state whether there is clear and unmistakable evidence that such disorder was not aggravated by service. In other words, the examiner should specifically indicate whether the complaints documented in service treatment records represent a worsening of any preexisting gynecological beyond its natural progression by service. If the Veteran’s diagnosed gynecological disorders did not preexist service and were not aggravated by service, the examiner should then determine whether it is at least as likely as not (a 50 percent or greater probability) that any such gynecological condition had its onset during service. If the gynecological disorder cannot be regarded as having had its onset during active service, the examiner should explicitly indicate so and provide an appropriate explanation. With respect to the sleep disorder: While review of the entire claims file is required, the examiner should carefully consider and discuss: a) the medically known causes of and recognized risk factors for sleep apnea and b) the VA medical opinions dated in April 2019 and November 2020. The examiner should then state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s sleep apnea is caused or aggravated (worsened beyond its natural progression) by her service-connected lumbar spine disability. If no aggravation is found, the examiner should specifically indicate so and provide an appropriate explanation. NOTE: In this context, “aggravation” refers to any incremental increase in disability. The term “incremental increase in disability” means additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions. Aggravation of a disability need not be permanent. If sleep apnea cannot be regarded as having been caused or aggravated by her service-connected lumbar spine disability, the examiner should state whether sleep apnea at least as likely as not, (a 50 percent probability, or greater) had its onset during military service. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bryant, Jeana R 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.