Citation Nr: 21027773 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 09-40 611 DATE: May 6, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder diagnosed as Female Sexual Interest/Arousal Disorder (FSIAD) (clamed as sexual dysfunction) is granted. Entitlement to service connection for a neurological disorder, to include of the right lower extremity, is denied. FINDINGS OF FACT 1. An acquired psychiatric disorder diagnosed as FSIAD had its' onset on active duty. 2. Despite the Veteran's presumptive exposure to the contaminants in the water supply at Camp Lejeune, the preponderance of the evidence shows that she has not been diagnosed with a neurological disorder, to include of the right lower extremity, at any time during the pendency of the appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder diagnosed as FSIAD have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria to establish service connection for a neurological disorder, to include of the right lower extremity, are not met. 38 U.S.C. §§ 1101, 1110, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active duty with the United States Marine Corps from February 1985 to February 1992 that is eligible for Veterans' Administration (VA) benefits. In this regard, while the Veteran had a subsequent period of service from February1992 to October 1998 the character of this service is less than honorable and she is ineligible for VA benefits based on this second period of service. In an April 2011 decision a Veterans' Law Judge other than the undersigned issued a Board of Veterans' Appeal (Board) decision that, among other things, denied the Veteran's claims of service connection for an acquired psychiatric disorder including PTSD, a gastrointestinal disorder including a hiatal hernia, migraine headaches, fibromyalgia, chronic tiredness, a right leg disability, and sexual dysfunction. The Veteran appealed the April 2011 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2012 order which incorporated the parties Joint Motion for Partial Remand (JMPR-1), the Court vacated and remanded the April 2011 Board decision to the extent that it denied service connection for an acquired psychiatric disorder including PTSD, a gastrointestinal disorder including a hiatal hernia, migraine headaches, fibromyalgia, chronic tiredness, a right leg disability, and sexual dysfunction. In October 2012 and August 2014, the Board remanded the appeal. At this time, the Board recharacterized the Veteran's claim of service connection for a right leg disability as a claim for a neurological disability, to include the right lower extremity. In a March 2016 rating decision, the regional office (RO) granted service connection for an acquired psychiatric disorder diagnosed as PTSD. Therefore, the Board finds that this issue is no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997) (holding that the RO's award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by the veteran's notice of disagreement on such issue). In January 2018, a Veterans' Law Judge other than the undersigned issued another Board decision that denied the Veteran's claims of service connection for fibromyalgia, sexual dysfunction, chronic tiredness, a neurological disability, a gastrointestinal disorder including a hiatal hernia, and headaches. The Veteran appealed the January 2018 Board decision to the Court. In a November 2019 order which incorporated the parties October 2019 Joint Motion for Partial Remand (JMPR-2), the Court vacated and remanded the April 2011 Board decision to the extent that it denied service connection for sexual dysfunction, gastrointestinal disorder, headaches, and a neurological disability. In May 2020, the Board again remanded the remaining issues on appeal. In a January 2021 rating decision, the RO thereafter granted the Veteran's claims of service connection for gastrointestinal disorder, headaches. Therefore, the Board finds that these issues are no longer in appellate status. See Grantham, supra. Post-JMPR-1/JMPR-2 and Remand Compliance Initially, the Board finds that the post-Remand development both addressed the concerns raised in the JMPR-1 and JMPR-2 as well as complied with the Remands because the VA examinations dated in August 2020 and December 2020 as well as the addendum dated in March 2021provided opinions as the diagnoses and etiology of the Veteran's disabilities based on all theories of entitlement which opinions are supported by citation to the service treatment records, the post-service medical records, the appellant's competent and credible lay claims regarding observable symptomatology, and controlling medical literature as well as supported by medical reasoning. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The Board also finds that the post-Remand development complied with the Remands because while the appeal was in Remand status all identified and available VA and private treatment records were obtained and associated with the record. Id. Therefore, the Board finds that further delay by remanding the appeal to provide the Veteran with a new VA examination or obtain additional treatment records is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Service Connection Claims The Veteran claims that service connection is warranted for sexual dysfunction either directly due to the in-service assaults or due to her service-connected PTSD. As to the neurological disorder, to include of the right lower extremity, she claim's it is due to her military service to include her exposure to the toxins in the water at Camp Lejeune and/or the fall from the back of a truck in October1985. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Board also notes that in order to establish presumptive service connection for a disease associated with exposure to contaminated water at Camp Lejeune, a veteran, former reservist, or member of the National Guard must show the following: (1) that he or she served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953, to December 31, 1987; (2) that he or she currently suffers from a disease associated with exposure to contaminants in the water supply at Camp Lejeune enumerated under 38 C.F.R. § 3.309(f); and (3) that the current disease process manifested to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(7), 3.309(f). The enumerated diseases associated with exposure to contaminants in the water supply at Camp Lejeune are as follows: (1) Kidney cancer, (2) Liver cancer, (3) Non-Hodgkin's lymphoma, (4) Adult leukemia, (5) Multiple myeloma, (6) Parkinson's disease, (7) Aplastic anemia and other myelodysplastic syndromes, (8) Bladder cancer. 38 C.F.R. § 3.309(f). The availability of presumptive service connection for a disability based on the contaminants in the water supply at Camp Lejeune does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The requirement of a current disability 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." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. 38 U.S.C. § 5107(a). VA shall consider all information and medical and lay evidence of record. Where 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The acquired psychiatric disorder diagnosed as FSIAD As to a current disability, the record shows the Veteran being diagnosed with FSIAD. See, e.g., VA examination dated in August 2020. In this regard, the record shows that the Veteran's claim has been pending since 2007. Moreover, the March 2021 addendum reported that the Veteran met the criteria for a diagnosis of FSIAD as found in the AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994) (DSM IV). Therefore, the Board does not find probative the fact that the March 2021 addendum thereafter reported that the Veteran may no longer meet the new criteria for a diagnosis of FSIAD as found in the AMERICAN PSYCHIATRIC ASSOCIATION DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 5th Edition (2013) (DSM V). As to an in-service injury, the regional office (RO) in the March 2016 rating decision that granted service connection for PTSD conceded that the Veteran had an in-service sexual assault during her qualifying period of active duty (i.e., February 1985 to February 1992). The Board will likewise concede that the Veteran had an in-service injury. Lastly, as to a relationship between the Veteran's post-service acquired psychiatric disorder diagnosed as FSIAD and the injury while on active duty (i.e., sexual assault), the August 25, 2020, VA examiner opined, in substance, that it was related to her in-service sexual assault during her qualifying period of active duty (i.e., February 1985 to February 1992).. Tellingly, while the record on appeal contains conflicting opinions as to whether the Veteran's acquired psychiatric disorder diagnosed as FSIAD is secondary to her service-connected PTSD (see VA examinations dated in August 2020 and December 2020; VA addendum dated in March 2021), the August 25, 2020, VA examiner's direct service connection opinion is not directly contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Moreover, the Board finds the August 25, 2020, VA examiner's direct service connection opinion both competent and credible as well as the most probative evidence of record because it was provided after a review of the record on appeal and an examination of the Veteran as well as because it is supported by citation to the service treatment records, the post-service medical records, the appellant's competent and credible lay claims regarding observable symptomatology and controlling medical literature as well as supported by medical reasoning. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."). Therefore, the Board finds that the criteria for granting service connection for an acquired psychiatric disorder diagnosed as FSIAD have been met and service connection is warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In this regard, the Board notes that the Veteran is already in receipt of a 100 percent rating for her acquired psychiatric disorder diagnosed as PTSD. Therefore, the RO when rating the Veteran's newly service connected acquired psychiatric disorder diagnosed as FSIAD should be mindful of the rule against pyramiding. See 38 C.F.R. § 4.14. Simply stated, it is important for the Veteran to understand that this grant may not necessarily provide a basis for more compensation. The neurological disorder, to include of the right lower extremity As to the claim of service connection for a neurological disorder, to include of the right lower extremity, the record shows that the Veteran was stationed at Camp Lejeune between 1985 and 1987. Therefore, the Board finds that the presumptions found at 38 C.F.R. §§ 3.307(a)(7), 3.309(f) are applicable to the current appeal. Moreover, the Board finds that the Veteran is competent and credible to report on what comes to her via her own senses like a fall from the back of a truck in October1985 with leg pain since that time. See Davidson, supra. However, the only mention of treatment to the Veteran's right leg while in service was in January 1989 when she pulled a groin muscle after falling down a hill; they are negative for a history, injury, complaints, diagnoses, or treatment for any neurological disorder to include of the right lower extremity. See Colvin, supra. Likewise, and more importantly, the Board notes that in August 2020 the Veteran was provided with another VA examination to obtain a medical opinion as to whether she has a neurological disorder and this examiner opined that she did not. Moreover, the Board finds this medical opinion the most probative evidence of record because it was held for the express purpose of obtaining such a diagnosis and the negative opinion was provided after a review of the record on appeal and an examination of the Veteran as well as because it is supported by citation to the service treatment records, the post-service medical records, the appellant's competent and credible lay claims regarding observable symptomatology, and controlling medical literature as well as supported by medical reasoning. See Guerrieri, supra. Further, while the Veteran is competent to report on the symptoms she observes, the Board finds that she is not competent to diagnose a neurological disorder because diagnosing it requires special medical training that she does not have. See Davidson, supra. The Board also finds that the facts of this appeal are distinguishable from those in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) because the findings by the August 2020 VA examiner shows that the claimed disability does not result in functional impairment that affects earning capacity. See Owens, supra; also see Wait v. Wilkie, 33 Vet. App. 8, 17 (2020). Accordingly, the Board finds that the most probative evidence of record shows that the Veteran does not have a diagnosis of a neurological disorder, to include of the right lower extremity, at any time during the pendency of the appeal and this claim is denied. 38 U.S.C. §§ 1110, 1131, 38 C.F.R. § 3.303. In reaching the above conclusion, the Board has also considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, the Board finds that this 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, 1 Vet. App. at 55-56. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.