Citation Nr: 21024141 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-24 692A DATE: April 22, 2021 ORDER Service connection for a respiratory disorder, to include asthma and bronchitis is denied. REMANDED The issue of entitlement to service connection for a gynecological disorder, to include menstrual disorder and residuals of hysterectomy is remanded. FINDING OF FACT The weight of the competent and probative evidence is against a finding that the Veteran’s respiratory disorder, to include asthma and bronchitis manifested in or is otherwise related to her period of active service. CONCLUSION OF LAW The criteria for respiratory disorder, to include asthma and bronchitis are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1990 to August 1991, with service in the Southwest Asia Theater of Operations during the Persian Gulf War from February 1991 to May 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board and remanded for additional development in September 2020. There has been substantial compliance with remand directives with respect to the issue of service connection for a respiratory disorder, to include asthma and bronchitis and an additional remand is not warranted. Unfortunately, an adequate nexus opinion was not provided for the issue of service connection for a gynecological disorder and an additional remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). The VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. 1. Respiratory disorder, to include asthma and bronchitis After reviewing the record, the criteria for service connection for a respiratory disorder, to include asthma and bronchitis are not met. The record contains a competent diagnosis of asthma satisfying the current disability requirement. October 2, 2020, VA Examination. The Veteran contends exposure to sandstorms, smoke and desert conditions while stationed in Saudi Arabia during the Persian Gulf War caused her to develop asthma. Id.; June 17, 2016, VA Form 9. The Veteran’s contentions regarding in-service exposure are competent, credible, and consistent with the places, types, and circumstances of her service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). The requirement of an in-service event or injury is met. Turning to the nexus requirement, an October 2020 VA examiner opined that it was less likely than that the Veteran’s asthma had its onset during or is otherwise related to the Veteran’s military service. October 2, 2020 VA Medical Opinion. The examiner reasoned that if environment factors present in Saudi Arabia were related to the Veteran’s asthma, symptoms of asthma would have manifested prior to 1997. The examiner further considered the fact that service treatment records contained no evidence of the evaluation, diagnosis, or treatment of asthma and thought the Veteran’s asthma to be intrinsic in nature. Articles from the Journal of Asthma and Allergy and the Canadian Medical Association Journal were cited in support of the conclusions. The Report of Medical History Forms completed by the Veteran twice in 1991 and once in 1992 indicate the Veteran had no history of asthma, shortness of beath, pain or pressure in the chest or chronic cough. June 5, 2003, STR – Medical. The Veteran did, however, acknowledge a history of frequent or severe headaches, ear, nose or throat trouble, sinusitis, stomach trouble, and treatment for a female disorder in June 1991. The October 2020 examiner’s opinion is found to be competent, credible, and highly probative as it is supported by an in-person examination, consideration of lay testimony, consideration of pertinent medical evidence and well-reasoned with citations to medical literature. There is no other medical opinion or other competent medical evidence presenting a contrary conclusion. The Veteran’s lay statements that her asthma was caused by in-service exposure to sandstorms, smoke and desert conditions have been given due consideration. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is not competent to offer an opinion as to the etiology of her asthma due to the medical complexity of the matters involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim of service connection for a respiratory disorder, to include asthma and bronchitis. As the preponderance of the evidence is against the claim, the benefit of the doubt does not apply, and the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND 1. The issue of entitlement to service connection for a gynecological disorder, to include a menstrual disorder and residuals of hysterectomy is remanded. This matter was remanded in September 2020 to afford Veteran an examination to determine the nature and etiology of any gynecological disorder, to include a menstrual disorder and residuals of hysterectomy. A new VA examination was obtained in December 2020; however, the medical opinion is inadequate for adjudication purposes. The Veteran contends that heavy and prolonged vaginal bleeding, menorrhagia, developed while she was deployed in 1991 and did not occur again until 2008 when she began to have prolonged and heavy bleeding that led to anemia. See May 6, 2013, Correspondence. The October 2020 examiner opined that it was less likely than not that the Veteran’s menorrhagia and hysterectomy had its onset during or is otherwise related to the Veteran’s military service. October 2, 2020, VA Examination. The examiner noted the Veteran had been diagnosed with disordered proliferative endometrium, uterine fibroids, and/or uterine polyps leading up to a total hysterectomy in April 2010 and explained that those diagnoses can lead to menorrhagia. Id. The examiner further reasoned that there was no link between environmental exposures and the development of such disorders and without evidence and/or diagnosis during service and knowledge that menorrhagia likely developed due to hormone imbalances, a nexus was not established. Id. The examiner failed to acknowledge and consider all of the pertinent medical and lay evidence in the record. Service treatment records from a May 1991 Out Processing Check List indicate that the Veteran experienced pain in the right ovary while deployed. June 5, 2003, STR – Medical. Report of Medical History Forms completed in April and June of 1991 and September 1992 indicate that the Veteran had received treatment for a female disorder but had no change in menstrual pattern. The September 1992 form further indicates that the Veteran had outpatient surgery to remove scar tissue outside her uterus sometime in 1991. Service treatment records also reveal that the Veteran presented with right lower quadrant abdominal pain in February 1991. July 11, 1997, STR – Medical. At that time, the Veteran indicated her last menstrual period was approximately 2 weeks prior. In March 1991, the Veteran presented with similar complaints and a gynecological consultation noted normal menses and no pelvic pain. The October 2020 VA examiner did discuss whether the reports of ovarian pain, outpatient uterine scar tissue surgery, or heavy and prolonged bleeding were manifestations or symptoms of menorrhagia or any of the later diagnosed disorders that led to the Veteran’s hysterectomy. A remand is necessary to obtain an addendum opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (finding the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). Once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the appropriate clinician to determine the nature and etiology of the Veteran’s gynecological disorder, to include a menstrual disorder and residuals of a hysterectomy. The clinician should review the virtual claims file and address the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that any gynecological disorder, to include a menstrual disorder and residuals of a hysterectomy are related to an injury, event, or disease that occurred during a period of active service. The examiner should specifically consider and address the Veteran’s statement that heavy bleeding began during her deployment, the noted 1991 outpatient uterine scar tissue procedure, and the report of right ovarian pain during deployment and any relation to the later diagnosed disorders of menorrhagia, disordered proliferative endometrium, uterine fibroids, and uterine polyps. The examiner is reminded that lack of medical evidence is not an adequate reason for discounting the Veteran’s lay statements. The Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Monica Ball Jackson, 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.