Citation Nr: 21024527 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 15-18 783A DATE: April 23, 2021 ORDER Service connection for a bilateral foot disability, to include pes planus, is denied. Service connection for a gastrointestinal disability is denied. Service connection for migraine headaches is denied. Service connection for an acquired psychiatric disability, to include major depressive disorder, is granted. FINDINGS OF FACT 1. A current bilateral foot disability is not related to service. 2. A current gastrointestinal disability is not related to service. 3. A current migraine headache disability is not related to service. 4. A current acquired psychiatric disability was present in service and did not clearly and unmistakably exist prior to induction. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral foot disability, to include pes planus, are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for service connection for a gastrointestinal disability are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 3. The criteria for service connection for migraine headaches are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 4. The criteria for service connection for an acquired psychiatric disability, to include major depressive disorder, met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1994 to September 1995. This appeal is before the Board of Veterans’ Appeals (Board) from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In October 2016, the Veteran testified during a Board hearing in Washington, DC, before the undersigned Veterans Law Judge. A transcript is included in the claims file. In September 2018, the Board remanded the Veteran’s claim of service connection for an acquired psychiatric disability with instruction to obtain relevant treatment records and an opinion from a VA examiner. The relevant records were obtained as were opinions from a VA examiner. In the same September 2018 decision, the Board denied the Veteran’s appeals for service connection for a bilateral foot disability, a gastrointestinal disability, and migraine headaches. She appealed the denial to the United States Court of Appeals for Veterans Claims (Court), which vacated the denials in a September 2019 order granting a joint motion for partial remand (JMPR). In March 2020, the Board remanded all issues with instruction to obtain current records, to obtain a clarification opinion regarding her mental health disability, and to provide VA examinations for her other claimed disabilities. The appropriate records were obtained, and she underwent examinations in January 2021. The Board is therefore satisfied that the instructions in its remands of September 2018 and March 2020 have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) 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. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When determining service connection, a presumption of soundness ordinarily applies. 38 C.F.R. § 3.304(b). Pursuant to such presumption, a Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). Only such conditions as are recorded in examination reports are to be considered as noted. The burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. 38 U.S.C. § 1153; Wagner, 370 F.3d at 1096. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for a bilateral foot disability, to include pes planus The Veteran claims service connection for a bilateral foot disability. Service treatment records reflect that in October 1994 and November 1994 the Veteran reported pain in her right foot. She was diagnosed with plantar fasciitis. No abnormality was noted at her August 1995 separation examination, and in the accompanying report of medical history she denied having ever experienced foot trouble. At her October 2016 hearing, the Veteran reported that her arches fell in basic training and she was given arch support. She stated that since then her feet ache really bad. VA treatment records reflect that in August 2019 the Veteran reported foot pain, swelling, and itchiness. Physical examination revealed a tender point on the medial side of the right foot. She was diagnosed with doxycycline-induced hives. The Veteran underwent a VA examination in December 2020. She reported that she developed sharp pain in her foot while marching in September 1994 and was diagnosed with fallen arches. She had not been treated since, but she is still experiencing ache in her feet and can only wear open-toed shoes. She reported that her disability prevents her from walking and that she uses insoles and foot wrap to treat the pain. She was diagnosed with bilateral pes planus and plantar fasciitis. The examiner opined that the disabilities were less likely than not related to service. This opinion was based on the rationale that although there were consultations for foot pain in 1994 and 2017, the medical evidence did not establish continuity to relate the disabilities to service. The Board finds that the evidence weighs against a finding that the Veteran’s current foot disabilities are related to service. There is no evidence for a relationship between a current disability and the symptoms reported in service beyond the Veteran’s reports of continuity, and these reports are not credible. Despite voluminous VA treatment records documenting regular complaints of musculoskeletal pain, the record does not establish reports of chronic foot pain prior to the December 2020 VA examination. Indeed, she reported a rash on her foot and foot pain in August 2019 but reported no chronic history of any longstanding symptoms. Furthermore, the Veteran has been an unreliable historian when seeking VA compensation. As discussed below, at her January 2021 VA examination for her mental health, she reported a medical history that starkly contradicted the history she had reported when seeking treatment. As such, the absence of continuity in her treatment records is more probative than her reports of continuity since separation. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran’s current foot disabilities are related to service, and service connection is therefore denied. 2. Entitlement to service connection for a gastrointestinal disability The Veteran claims service connection for a gastrointestinal disability. Service treatment records do not reflect any symptoms of or treatment for a gastrointestinal disability. While there were many reports of abdominal pain and she was initially diagnosed with constipation, the symptoms were eventually associated with her uterine fibroids for which she is already service-connected. No digestive abnormality was noted at her August 1995 separation examination, and in the accompanying report of medical history she denied having ever experienced stomach trouble, intestinal trouble, or frequent indigestion. VA treatment records reflect that in December 2015 the Veteran was diagnosed with reflux, gastroesophageal reflux disease (GERD), and constipation. In July 2016 she presented to the emergency room with bloody diarrhea and cramping. She was diagnosed with colitis and prescribed antibiotics. At her October 2016 hearing, the Veteran reported that she began experiencing stomach pain in service. She stated that she was diagnosed with acute gastroenteritis and has had gastrointestinal pain ever since. She stated that in 2007 she underwent a private endoscopy and was diagnosed with a hiatal hernia. She reported intermittent issues to this day. VA treatment records reflect that in January 2019 the Veteran presented to the emergency room reporting chest pain. She was noted to have a history of GERD and was prescribed medication. The Veteran underwent a VA examination in December 2020. She reported that she began to experience sharp abdominal pain in service in 1994 and was taken by ambulance to the hospital where she was diagnosed with acute gastroenteritis. She reported that she was not treated between then and now, but she still experiences stomach cramps, bloody stool, headache, loss of appetite, vomiting, mucus, and diarrhea. She was diagnosed with irritable bowel syndrome (IBS). The examiner opined that the disability was less likely than not related to service. This opinion was based on the rationale that there was no medical evidence to relate her current IBS to the symptoms reported in 1995. The Board finds that the evidence weighs against a finding that the Veteran’s current gastrointestinal disability is related to service. There is no evidence for a relationship between a current disability and symptoms reported in service beyond the Veteran’s reports of continuity, and these reports are not credible. Despite voluminous VA treatment records documenting regular complaints of pain, the record does not establish reports of chronic abdominal symptoms prior to the December 2020 VA examination. Indeed, while she reported reflux symptoms and was diagnosed with GERD, beyond her lay statements there is no indication of a relationship to pain in service, which was ultimately attributed to her uterine fibroids. Furthermore, the Veteran has been an unreliable historian when seeking VA compensation. As discussed below, at her January 2021 VA examination for her mental health, she reported a medical history that starkly contradicted the history she had reported when seeking treatment. As such, the absence of continuity in her treatment records is more probative than her reports of continuity since separation. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran’s current headaches are related to service, and service connection is therefore denied. 3. Entitlement to service connection for migraine headaches The Veteran claims service connection for migraine headaches. Service treatment records do not reflect any symptoms of or treatment for migraine headaches. In the report of medical history accompanying her February 1994 induction examination, the Veteran reported a history of mild hay fever, but no abnormality was noted in the examination report. Likewise, no abnormality was noted at her August 1995 separation examination, but in the accompanying report of medical history she reported moderate hay fever every spring, manifested by frequent and severe headaches. At her October 2016 hearing, the Veteran reported that she experiences severe migraine headaches every day. She reported that they began when she was in service. VA treatment records reflect that in March 2017 the Veteran reported migraine headaches for at least 20 years. She reported that they occur daily. The Veteran underwent an VA examination in December 2020. She reported that her headaches began in basic training in August 1994. She reported that she still has recurrent headache with sensitivity to light and sound, loss of appetite, nausea, and vomiting. She was diagnosed with migraine headaches. The examiner opined that headaches were less likely than not related to service. This opinion was based on the rationale that although she marked “yes” on frequent or severe headaches upon separation with consultations for headaches in 2009, 2017, and 2018, the record did not show a nexus relationship for migraine headaches. The Board finds that the evidence weighs against a finding that the Veteran’s headaches are related to service. There is no evidence for a relationship between current headaches and the hay fever symptoms reported in service beyond the Veteran’s reports of continuity, and these reports are not credible. Despite voluminous VA treatment records documenting regular complaints of pain, the record does not establish reports of chronic headaches prior to the December 2020 VA examination. Indeed, despite reporting at her examination severe daily headaches requiring bedrest, her VA treatment records routinely reflect explicit denial of any headache pain. Furthermore, the Veteran has been an unreliable historian when seeking VA compensation. As discussed below, at her January 2021 VA examination for her mental health, she reported a medical history that starkly contradicted the history she had reported when seeking treatment. As such, the absence of continuity in her treatment records is more probative than her reports of continuity since separation. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran’s current headaches are related to service, and service connection is therefore denied. 4. Entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder The Veteran claims service connection for a mental health disability. Service treatment records reflect that the Veteran was admitted to inpatient mental health care in August 1995. She had had disciplinary problems including problems following regulations regarding shoes and hair and being punished for making unauthorized long-distance phone calls. She had been referred to counselling for alcohol abuse in June 1995. She denied suicidal ideation at her August 1995 discharge examination, but in July 1995 her sergeant had overheard her talking to a coworker and interpreted the conversation as having suicidal content. She was diagnosed with adjustment disorder with disturbance of conduct and discharged. Private treatment records reflect that in January 2009 the Veteran underwent a mental health evaluation reporting increasing mood swings, crying spells, depression, sleep difficulties, poor appetite, and variable energy level. She reported paranoia, depersonalization, and occasional hallucinations. She reported being hospitalized while in service, having a great deal of difficulty adjusting to military life. She denied mental health treatment since her medical discharge from service. She was diagnosed with depressive disorder and posttraumatic stress disorder (PTSD). She began regular treatment, reporting financial issues, job frustration, and family issues. Her treatment records no longer mentioned PTSD, nor was any trauma ever referred to. Therapy records did not reference her military service after January 2009. The Veteran underwent a VA examination in November 2011. She reported that she began to have emotional difficulties almost immediately upon induction into service. She was diagnosed in service with depression and alcohol abuse and was psychiatrically hospitalized for one night in October 1995. She was next treated for her mental health in January 2009. She currently reported intermittent symptoms of depression. She was diagnosed with recurrent adjustment disorder with depressed mood. In May 2015 an opinion was obtained from a VA examiner based on a review of the record. The examiner opined that the Veteran’s November 2011 diagnosis of recurrent adjustment disorder with depression is less likely than not related to her in-service diagnosis of adjustment disorder with disturbance of conduct. This opinion was based on the rationale that the in-service diagnosis was assigned following a series of disciplinary infractions for which she was ultimately discharged, but this was no longer a factor in her life as she went on to create a career as a hair stylist. The examiner further explained that the “recurrent” diagnosis given by the November 2011 VA examiner was medically incorrect under DSM-IV standards because the recurrent specifier is not available for adjustment disorders. Rather, a chronic specifier is appropriate when symptoms persist for longer than 6 months with enduring long-term consequences. The Veteran’s in-service symptoms, however, did not persist for 6 months or have any documented consequences until her current symptoms developed nearly 15 years later. In a statement accompanying her June 2015 substantive appeal, the Veteran reported that her depression has gotten progressively worse since it first manifested in basic training. She reported that she began seeing a counselor in basic training because she was suicidal and cried every day. She further stated that her depression was secondary to her service-connected hysterectomy. VA treatment records reflect that in December 2015 the Veteran reported suicidal ideation and was referred for a mental health consultation. She began group therapy in January 2016. Later than month she called the suicide hotline. She reported issues including childhood issues, multiple medical conditions including three major surgeries and cancer in remission, feelings of failure and abandonment, and living with her mother without being able to afford her own place. She reported a suicide attempt in 2012 in which she attempted to cut her wrist. Her mother intervened and medical attention was not sought. She presented to the emergency room and was diagnosed with depression. She was scheduled for a consultation and discharged. In February 2016 she reported feeling symptoms of depression prior to entering service in 1994. She stated that she then felt symptoms during boot camp. She reported that she was currently experiencing stress related to living with her mother, health, and financial concerns. She reported a history of trauma, assault, and abuse, none of which occurred during service. She was diagnosed with unspecified depressive disorder and rule-out borderline personality disorder. In March 2016 she was diagnosed with a trauma and stress related disorder or posttraumatic stress disorder (PTSD) related to childhood and adult sexual abuse. She was given rule-out diagnoses of depression secondary to medical conditions and borderline personality disorder. She continued treatment for her diagnoses thereafter; records do not reflect any additional discussion of her time in service. At her October 2016 hearing the Veteran reported that her depression began during basic training and was exacerbated by her hysterectomy. She stated that she began mental health treatment with VA in January 2016. VA treatment records reflect that in April 2018 the Veteran was diagnosed with severe recurrent major depressive disorder and borderline personality disorder. The Veteran underwent another VA examination in July 2019. She was diagnosed with borderline personality disorder. The examiner opined that the disability was less likely than not related to service. This opinion was based on the rationale that she reported pre-military mental health issues in the form of unstable mood, chronic feelings of emptiness, and chronic suicidal ideation with an attempted suicide at age 17. The examiner found no evidence that this pre-existing disability was related to service. The examiner further found that the disability had not been aggravated by service, noting that there was suicidality prior to and during service but no currently active suicidality. The examiner noted that while the Veteran reported affective instability in the workplace, she has been able to establish a career and has never been reprimanded or fired. Finally, the examiner opined that the disability was less likely than not related to service-connected disabilities. This opinion was based on the rationale that there was no diagnosis associated with uterine fibroids or hysterectomy. The Veteran underwent another VA examination in January 2021. She denied any history of pre-military physical or sexual abuse. She denied pre-military suicide attempts. When confronted that this contradicted her prior records of a suicide attempt, she stated, “I guess you could say that, but it was very superficial.” In service she was diagnosed with adjustment disorder with disturbance of conduct. The examiner diagnosed mild recurrent major depressive disorder and borderline personality disorder. The examiner opined that the disabilities were less likely than not related to service. This opinion was based on the rationale that the evidence indicated a more than 50 percent likelihood that the disability pre-existed service and a less than 50 percent likelihood of being caused or aggravated by service-connected uterine fibroids and associated hysterectomy. Specifically, the examiner noted that it was not until 2018 that the death of her sibling significantly worsened her depression, leading her to leave her work. As an initial matter, the Board notes that the Veteran has been variously assigned numerous diagnoses, the most prominent of which are borderline personality disorder and major depressive disorder. Personality disorders are considered congenital or developmental defects and not diseases or injuries within the meaning of applicable legislation and, therefore do not constitute disabilities for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9. Service connection, however, can be granted for additional disability resulting from a mental disorder that is superimposed upon the personality disorder. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; see also VAOPGCPREC 82- 90, 55 Fed Reg. 45,711 (July 18, 1990); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). While the July 2019 VA examiner diagnosed the Veteran with borderline personality disorder alone, other examiners as well as her treatment providers have diagnosed her with major depressive disorder, a compensable disability. As such, the Board finds that the evidence is at least in equipoise as to whether the Veteran has current disability for VA compensation purposes. The Board finds that the evidence is at least in equipoise that the Veteran’s current psychiatric disability is related to her in-service symptoms. The VA examiners in December 2015 and July 2019 gave adequate opinions that her current symptoms were unrelated to service, but the Board remanded twice in an attempt to obtain an opinion regarding secondary service connection. The January 2021 VA examiner, however, opined that her current disability was present in service, bringing the evidence into equipoise. The examiner further opined that the disability at least as likely as not predated service. The disability, however, was not noted at her February 1994 induction examination. She is therefore presumed sound absent clear and unmistakable evidence to the contrary, and the January 2021 examiner’s equipoise opinion is not probative evidence. Her service treatment records note that she saw a counselor in high school, and more recent treatment records contain reports of a suicide attempt prior to induction. This evidence is conflicting, however, as the Veteran denied the suicide attempt at her January 2021 VA examination. Indeed, her reports at the examination starkly contradicted those of her treatment records. The evidence therefore is not clear and unmistakable, and she must therefore be presumed sound upon entry into service. For these reasons, the Board finds that the evidence is at least in equipoise as to whether her current disability was present in service and did not clearly and unmistakably exist prior to induction. Service connection for an acquired psychiatric disability is therefore granted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Gallagher, 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.