Citation Nr: 21014868 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-15 499 DATE: March 16, 2021 ORDER 1. Entitlement to service connection for a bilateral hip condition is denied. 2. Entitlement to service connection for a bilateral shoulder condition is denied. 3. Entitlement to service connection for a bilateral ankle condition is denied. 4. Entitlement to service connection for Polycystic Ovary Disease (PCOS) is denied. FINDINGS OF FACT 1. The weight of competent and credible evidence is against finding that the Veteran’s bilateral hip condition began during active service or is otherwise caused by an in-service injury or disease. 2. The weight of competent and credible evidence is against finding that the Veteran’s bilateral shoulder condition began during active service or is otherwise caused by an in-service injury or disease. 3. The weight of competent and credible evidence is against finding that the Veteran’s bilateral ankle condition began during active service or is otherwise caused by an in-service injury or disease. 4. The weight of competent and credible evidence is against finding that the Veteran’s PCOS began during active service or is otherwise caused by an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hip condition have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for a bilateral shoulder condition have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for a bilateral ankle condition have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for PCOS have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from February 1998 to September 2005. Service in Southwest Asia is indicated by the record. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Chicago Illinois. In December 2017, the Veteran testified during a Board video-conference hearing before a Veterans Law Judge (VLJ); a transcript of the hearing has been associated with the claims file. As the VLJ retired, the Veteran was provided an opportunity to request another hearing before the Board. The Veteran did not respond to the January 2021 letter providing the option to do so; therefore, the claim has been decided by the undersigned VLJ. In an October 2018 Board decision, the claims were remanded for further evidentiary development. As will be discussed below, review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A supplemental statement of the case (SSOC) was issued in July 2020. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. The October 2018 Board decision also remanded the matter of entitlement to service connection for a low back disability. In a July 2020 rating decision, the RO granted service connection for degenerative arthritis of the spine and assigned a 20 percent rating from January 14, 2010. That matter has accordingly been resolved. See Grantham v. Brown, 114 F.3d 1136 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of “downstream” issues such as the compensation level assigned for the disability or the effective date of service connection). 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). Establishing service connection generally requires (1) competent 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) competent evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Entitlement to service connection for a bilateral hip condition is denied. The Veteran contends that she suffers from a bilateral hip condition due to her military service. A review of the Veteran’s service treatment records (STRs) shows that in January 2004, while on active duty the Veteran reported bilateral hip pain and stated that “every now and then hips lock up x 2 yrs…pain in hips x 5 months. Then gets better.” See June 2015 STR-Medical, p. 75. In the Veteran’s separation report of medical history, she did not report any hip disabilities. See STR-Medical, pp. 12-14. The first instance of a hip disability being raised by the record post-service came in the form of a December 2013 orthopedic surgery note. There, the Veteran stated that her right hip began hurting in the spring of 2013, though she stated that she had intermitted pain in her hips since 1998. See October 2019 Medical Treatment Record – Government Facility, p. 1. The Veteran raised the claim of service connection in June 2015, and in November 2016 was diagnosed with bilateral hip displacement with intermittent pain. See CAPRI, p. 170. In August 2017 she was diagnosed with a congenital dislocation of bilateral hips. Id at 212. In March 2018 the Veteran sought treatment for hip pain, which she stated began when “she bent down to brush her teeth.” See August 2019 CAPRI, p. 129. The Veteran was afforded a VA examination in December 2019 at which time the examiner confirmed diagnoses of right femoral acetabular impingement syndrome and bilateral degenerative arthritis. The Board finds that the first two elements of service connection have been met, as the record shows that the Veteran has been diagnosed with a bilateral hip condition during the appellate period, and the record shows that the Veteran sought medical treatment for bilateral hip pain while on active duty service. The Board thus turns to the third element of service connection, a medical nexus between the Veteran’s current bilateral hip disability and her military service. In this, the Board acknowledges the Veteran’s belief that her bilateral hip condition was caused by her military service. However, the question of whether a nexus exists is a medical determination that requires a competent nexus opinion, as the determination of the etiology of the Veteran’s disability is a complex medical condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As such, the Veteran’s lay statements, while credible, do not constitute a nexus opinion. Given the Veteran’s service in Southwest Asia, the Board additionally notes that the law and regulations pertaining to service connection for undiagnosed illnesses resulting from the Persian Gulf War service are not for application as to the pending claim, because the Veteran has diagnosed disabilities, namely right femoral acetabular impingement syndrome and degenerative arthritis of the bilateral hips. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. In May 2014, the Veteran was afforded a VA examination. There, she reported that she has experience hip ‘popping’ since 1998, with pain beginning in 2013, with the right side being worse. The VA examiner declined to diagnose the Veteran with a hip condition opined that the Veteran’s bilateral hip pain was congenital and a developmental abnormality, with the Veteran’s training, schooling and employment as a fitness instructor being a contributing factor to her current condition. The VA examiner stated that the Veteran’s military service due not cause her hip condition, nor did it aggravate it beyond its natural progression. See #5 May 2014 C&P Exam. The Veteran’s claim was provided a statement of the case (SOC) in April 2015 explaining her denial and the Veteran submitted a timely VA Form 9, in which she stated that she has a hip condition and that she is able to state this as a lay person. The Veteran further requested a hearing before a Veterans Law Judge (VLJ). In December 2017, the Veteran testified before a VLJ. At the hearing, the Veteran stated that there was enough evidence in the record to grant her claim, without stating specifically what occurred in service that might have caused her current hip disability. Following her hearing, the Board issued a remand order in October 2018 for further development to be conducted. Another VA examination was provided in December 2019. There, the VA examiner opined that the Veteran’s bilateral hip condition was less likely than due to her military service. In this, he provided the rationale that the Veteran’s medical records contained no mention of a bilateral hip condition or diagnosis in service, and after showing a hip condition in 2004, the record was silent as towards any complaint, treatment or diagnosis until 2014. Given the lack of evidence of chronicity of care during active duty or afterwards, the examiner opined that a nexus could not be established. See December 2019 C&P Exam. The Board finds the December 2019 VA examiner’s nexus opinion to be of significant probative value, as the examiner conducted an in-person examination, reviewed the Veteran’s medical records, considered the Veteran’s lay statements and provided a rationale based on the record. As the probative evidence of record shows that there is no medical nexus between the Veteran’s bilateral hip disabilities and her military service, her claim of service connection must be denied. The Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Entitlement to service connection for a bilateral shoulder condition is denied. The Veteran contends that she suffers from a bilateral shoulder condition due to her military service. A review of the Veteran’s STRs do not show any complaint, treatment or diagnosis for shoulder pain. In the Veteran’s separation report of medical history, she marked ‘yes’ to “painful shoulder, elbow or wrist” and explained “left shoulder better, tendinitis.” The Veteran did not indicate any right shoulder pain. See STR-Medical, pp. 12-14. The first instance of a shoulder disability being raised by the record post-service came in the form of her claim of service connection in October 2005. A review of the Veteran’s medical treatment records does not show complaint, treatment or diagnosis of a shoulder condition until May 2014 when the Veteran was provided a VA examination. There, the Veteran reported that her left shoulder pain began in 2005 as she was getting dressed for deployment. The pain “just started happening” causing her to be unable to raise her arm. The Veteran reported that the pain “happens now and then” and was a 10 out of 10 on the pain scale, with numbness and tingling of her 4th and 5th fingers, bilaterally. Range of motion testing showed abnormal left shoulder range of motion and normal right shoulder range of motion. The examiner opined: The Veteran’s Left Shoulder Disability is less than likely as not (<50% probability) incurred in or caused by (in-service) treatment for left shoulder pain that occurred July 8, 2005…After careful examination of the Veteran’s Claims file and the CPRS Electronic Medical Records there is no documentation regarding an injury which caused the Veteran’s LEFT SHOULDER CONDITION. [The Veteran] has not sought medical care for her left shoulder complaint from 11/24/2009 through 5/2/2014 (her last Hines VA medical visit). Therefore, the LEFT SHOULDER complaint reveals no nexus of chronicity. The first indication of right shoulder pain came in the form of a March 2016 telephone encounter note, in which the Veteran reported increasing pain in the right shoulder, that had been progressing throughout the month. Id at 325. In April 2016 the Veteran reported that her right shoulder began hurting when doing chest presses in March of 2016. Id at 311. As above, the Veteran’s claims were denied and she appealed. In her December 2017 hearing before a VLJ, she stated that the record was sufficient to grant benefits, without discussion of her current disability or how her military service might have caused it. The Board issued a remand order in October 2018 for a new VA examination to be provided. In December 2019, the Veteran was provided another VA examination. There, the VA examiner diagnosed the Veteran with bilateral glenohumeral joint instability with rotator cuff tendinitis and opined that neither the Veteran’s condition was not due to her military service. The examiner explained: The Veteran's enlistment exam conducted on 01/12/1998 shows the Veteran enlisted in The US Army in good standing health with no mention of a past or current bilateral shoulder disability or medical condition. The first mention of an acute Shoulder injury presented in the Veteran's C-File dates back to 2005. The Veteran's objective findings on physical exam on 12/20/2019 are consistent with a bilateral glenohumeral joint instability with rotator cuff tendinitis diagnosis. The Veterans unspecified depressive disorder with anxious distress, claimed as posttraumatic stress disorder (PTSD) is not medically related to bilateral glenohumeral joint instability with rotator cuff tendinitis. The claimed disorder is a separate entity entirely from the service-connected condition and unrelated to it. A nexus has not been established. The Board finds the December 2019 VA examiner’s nexus opinion to be of significant probative value, as the examiner conducted an in-person examination, reviewed the Veteran’s medical records, considered the Veteran’s lay statements and provided a rationale based on the record. The Board additionally notes that the law and regulations pertaining to service connection for undiagnosed illnesses resulting from the Persian Gulf War service are not for application as to the pending claim, because the Veteran has diagnosed disabilities, namely bilateral rotator cuff tendonitis and bilateral glenohumeral joint instability. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The Board acknowledges the Veteran’s belief that her bilateral shoulder condition was caused by her military service however the Board finds that the Veteran is not competent to provide a nexus opinion on this matter. See Jandreau, supra. As the probative evidence of record shows that there is no medical nexus between the Veteran’s bilateral shoulder condition and her military service, her claim of service connection must be denied. The Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Entitlement to service connection for a bilateral ankle condition is denied. The Veteran contends that she suffers from a bilateral ankle condition due to her military service. A review of the Veteran’s STRs shows that she was on a physical profile due to bilateral recurrent ankle sprains in service. See #5 June 2015 STR-Medical, p. 47. In the Veteran’s separation report of medical history, she reported foot trouble. See #5 STR-Medical, pp. 12-14. The first instance of an ankle disability being raised by the record post-service came in the form of the Veteran’s October 2005 claim for benefits. In May 2014, the Veteran was provided a VA examination. There, the Veteran stated that at the time of the examination that “it’s sprained ankle all the time. I got sprained ankles. Not right now [be]cause they got better but I sprained my ankles all the time when I joined the army, road march, ruck march, every time they’d go.” At the examination itself, the Veteran denied any current complaint to either of her ankles, and stated that the last time they hurt was on the 4th of July 2013. The VA examiner did not diagnose the Veteran with a current condition. See May 2014 C&P Exam. The Board accepts this lay evidence as stating that at the time of the May 2014 VA examination the Veteran did not have a left or right ankle condition, but the Veteran was reporting that her ankles had been previously sprained when in service. The Veteran’s claim was subsequently denied and she appealed, and in doing so requested a hearing before a VLJ. In the Veteran’s December 2017 Board Hearing she stated that she sprained her ankles in service 12 times but did not discuss her current condition. Subsequent to the Veteran’s hearing before the Board, a March 2018 physical medicine rehabilitation consultation listed an ankle sprain as an active problem. See August 2019 CAPRI, p. 130. From there, the record was silent as to any complaint or treatment until February 2019 when the Veteran sprained her left ankle “stepping off a stage with a client.” See August 2019 CAPRI, p. 1. The Veteran was afforded a VA examination in December 2019 at which time the examiner confirmed continuing diagnoses of bilateral lateral collateral ligament sprains, tendonitis of the right ankle, and retrocalcaneal bursitis of the right ankles. The Board finds that the first two elements of service connection have been met, as the record shows that the Veteran has been diagnosed with a bilateral ankle condition during the appellate period, and the record shows that the Veteran sought medical treatment for shoulder pain while on active duty service. The Board thus turns to the third element of service connection, a medical nexus between the Veteran’s current bilateral ankle disability and her military service. See August 2019 CAPRI, p. As the record did not contain a nexus opinion, the Board issued a remand order in October 2018 for a new examination, which was provided in December 2019. As noted above, the December 2019 VA examiner diagnosed the Veteran with bilateral collateral ligament sprain, right ankle tendonitis and right ankle retrocalcaneal bursitis. The Veteran stated that by 2000 she was having daily pain in both ankles. The examiner opined that the Veteran’s bilateral ankle condition was less likely than not caused by her military service, stating: The Veteran’s enlistment exam conducted on 01/12/1998 shows the Veteran enlisted in The US Army in good standing health with no mention of a past or current medical condition of bilateral ankle disabilities or conditions. The First mention of an acute ankle injury presented in the C-File was in 2000. The X-ray findings of the left ankle on 2/22/2000 were: 1. No acute fracture or dislocation. 2. Soft tissue enlargement compatible with ankle edema without radiographic evidence of a fracture. The next exam visit in the Veteran’s C-File regarding an ankle disability is not again until 2013. 8 years after the Veteran separated from the military. The Veteran’s C-File fails to present objective evidence of a chronic ankle condition during service time. The claimed disorder a separate entity entirely from the service-connected condition, PTSD and unrelated to it. A nexus has not been established. The Board finds the December 2019 VA examiner’s nexus opinion to be of significant probative value, as the examiner conducted an in-person examination, reviewed the Veteran’s medical records, considered the Veteran’s lay statements and provided a rationale based on the record. The Board additionally notes that the law and regulations pertaining to service connection for undiagnosed illnesses resulting from the Persian Gulf War service are not for application as to the pending claim, because the Veteran has diagnosed disabilities, namely bilateral lateral collateral ligament sprains, as well as tendonitis and retrocalcaneal spurs of the right ankle. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. While the Board acknowledges the Veteran’s belief that her current ankle conditions were caused by her military service, the Board notes that the Veteran is not competent to provide a nexus opinion. See Jandreau, supra. Furthermore, the Board affords diminished probative value to the Veteran’s lay statements concerning her bilateral ankle disability due to her inconsistent statements, as the Veteran stated at her May 2014 VA examination that her ankles were fine and had been so since 2013, while at her December 2019 VA examination she stated that she had chronicity of pain since 2000. In sum, the Board finds that the probative evidence of record shows that there is no medical nexus between the Veteran’s current bilateral ankle conditions and her military service. In the absence of competent and probative evidence to the contrary, the Veteran’s claim must be denied. The Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Entitlement to service connection for PCOS is denied. The Veteran contends that she suffers from PCOS due to her military service. The Veteran was diagnosed with PCOS in 2006 with symptoms of “hair thinning, [and secondary] amenorrhea.” See Medical Treatment Record – Government Facility, p. 258. A review of the Veteran’s STRs do not show any complaint, treatment or diagnosis of PCOS, nor does the record show any related symptoms. In January 2010, the Veteran submitted a claim of service connection for PCOS, which was denied in June 2010 on the grounds that, at the time, the Veteran did not submit any evidence, to include lay statements, showing a current disability caused by her military service. The Veteran responded with a timely NOD in which she claimed that she was treated for PCOS while on active duty, without providing any details as to when said treatment was provided. See November 2010. An SOC was provided explaining that no record of treatment was found in the Veteran’s STRs, and the Veteran responded with a timely VA Form 9 in May 2015, in which she requested a hearing before the Board. In December 2017, the Veteran was provided a hearing before a VLJ. There, the Veteran raised the theory that her current PCOS came about due to birth control taken while serving in the United States Army. See December 2017 Hearing Testimony, p. 6. In response to this, the Board issued a remand order in October 2018, for a VA examination to be provided. As per the Board’s remand order, an examination was provided in December 2019. There, the VA examiner opined that the Veteran’s PCOS was less likely than not due to her military service. In his rationale, the examiner stated that the Veteran’s diagnosis of PCOS took place after she left the military. The VA examiner went on to explain his reasoning for the Veteran’s PCOS having not arisen during her active duty military service. In this, the examiner stated: [F]urthermore, the Veteran’s C-File fails to present objective evidence of a polycystic ovary disease or syndrome during her active service time. In fact the above exam note shows the Veteran admitted to having regular menses prior to 2006 that were 28 days apart, menses that lasted 5 days with moderate bleeding with the exception of one incident when the Veteran was 26 years old and missed a period when she thought she was pregnant. According to UpToDate, “Two out of three of the following criteria are required to make the diagnosis of PCOS: Oligo- and/or anovulation, Clinical and/or biochemical signs of hyperandrogenism, Polycystic ovaries (by ultrasound). Many women with irregular menses and hyperandrogenic symptoms can be diagnosed based upon on the history and physical exam alone. However, the diagnosis of PCOS is only confirmed when other conditions that mimic PCOS are excluded (e.g., disorders that cause oligo/anovulation and/or hyperandrogenism, such as thyroid disease, nonclassic congenital adrenal hyperplasia [NCCAH], hyperprolactinemia, and androgen-secreting tumors).” Based on this clinical evidence the Veteran would not be a candidate for a PCOS clinical diagnosis until she started having irregularities in her menses and ovulation. Based on the evidence presented in the medical records the Veteran did not start exhibiting those particular symptoms until 2006, a year after she had been released from the US Army. Therefore, a nexus cannot be established. The Board finds the December 2019 VA examiner’s nexus opinion to be of significant probative value, as the examiner conducted an in-person examination, reviewed the Veteran’s medical records, considered the Veteran’s lay statements and provided a rationale based on the record. While the Board acknowledges the Veteran’s belief that her PCOS was caused by the birth control that she took while on active duty, the Board notes that the Veteran is not competent to provide such a medical opinion. See Jandreau, supra. Rather, the Board holds the findings of the December 2019 VA examiner in high probative regard, and notes that there are no competing probative and positive nexus opinions of record. In sum, the Board finds that the probative evidence of record shows that there is no medical nexus between the Veteran’s current PCOS and her military service. In the absence of competent and probative evidence to the contrary, the Veteran’s claim must be denied. The Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Abels, Associate 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.