Citation Nr: 21035858 Decision Date: 06/10/21 Archive Date: 06/10/21 DOCKET NO. 17-00 867 DATE: June 10, 2021 ORDER Entitlement to a compensable rating for recurrent vulvovaginitis is denied. Entitlement to service connection for a left shoulder disability is denied. REMANDED Entitlement to a compensable rating for migraines prior to October 11, 2019, is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for Barrett's esophagus is remanded. Entitlement to service connection for gastritis is remanded. Entitlement to service connection for residuals of uterine fibroids, to include as secondary to recurrent vulvovaginitis, is remanded. Entitlement to service connection for hysterectomy, claimed as secondary to uterine fibroids, is remanded. Entitlement to service connection for lumbosacral strain is remanded. Entitlement to service connection for a neck condition is remanded. Entitlement to service connection for fatigue is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against the finding that the Veteran's recurrent vulvovaginitis has manifested in symptoms that require continuous treatment. 2. The Veteran's left shoulder disability is not related to any injury, disease, or event incurred in service. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for recurrent vulvovaginitis have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.124a, Diagnostic Code 7610 (2019). 2. The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1987 to October 1992. This case comes before the Board of Veterans' Appeals (Board) from May 2014 and January 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In November 2019, the Veteran presented sworn testimony during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the Board hearing has been associated with the Veteran's claims file. This claim was previously before the Board in February 2020, at which time it was remanded for additional development. The February 2020 Board decision remanded the issue of entitlement to service connection for a left eye disorder, to include a retinal tear OS and blurred vision. In September 2020, the RO granted the Veteran's claim and assigned a zero percent evaluation, effective February 26, 2013. The Veteran has not disagreed with the assigned evaluation or the effective date and, therefore, this claim is no longer before the Board. The Board denied the Veteran's claim for entitlement to a compensable rating for migraines prior to October 11, 2019, in a February 26, 2020, decision, and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). The parties filed a Joint Motion for Remand (Joint Motion), and an October 2020 Order of the Court vacated the Board's decision because it did not provide an adequate statement of reasons and bases regarding whether the Veteran's service-connected migraines warranted a compensable rating for a period prior to October 11, 2019. More specifically, the Joint Motion concluded that the Board did not address evidence in the record that related to symptomatology present prior to October 11, 2019. Increased Ratings Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified by the schedule are considered adequate to compensate veterans for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2019). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2019). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is, therefore, undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Entitlement to a compensable rating for recurrent vulvovaginitis Diagnostic Code 7610 pertains to disease, injury or injury of the vulva (including vulvovaginitis). Pursuant to the General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs (diagnostic codes 7610 through 7615), symptoms that are not controlled by continuous treatment warrant a 30 percent rating. Symptoms that require continuous treatment warrant a 10 percent rating. Symptoms that do not require continuous treatment are assigned a noncompensable rating. 38 C.F.R. § 4.116, Diagnostic Code 7610. The Veteran received a VA examination in October 2013 and reported two to three yeast infections per year for which she used over the counter medication. She denied any vaginal discharge and was not taking medication for her yeast infection. The Veteran did not have any symptoms related to her gynecological condition and did not require treatment or medications for symptoms related to her reproductive tract conditions. The Veteran submitted a private Disability Benefits Questionnaire (DBQ) in October 2019 and her physician indicated that she had been treated for her recurrent vulvovaginitis, including abnormal vaginal discharge, foul odor, stomach cramps, and itching. She endorsed symptoms including severe pain, pelvic pressure, and frequent urination, but did not currently require treatment or medications for symptoms related to her condition. At the November 2019 Board hearing, the Veteran testified that she still had yeast infections that required her to go to her doctor for prescriptions because over the counter medications did not work. She continued to exhibit symptoms of itching, discharge, and foul odor. Pursuant to the February 2020 Board remand, the Veteran received a VA examination in March 2020 and described residuals including daily discharge, irritation, itching, and foul odor. She was not on chronic medication for the condition, but her gynecologist intermittently treated her with antibiotics and antifungals. The examiner found that the Veteran did not currently require treatment or medications for symptoms related to her condition. The Veteran received a VA examination in August 2020 and described chronic urinary yeast infections requiring treatments frequently. Her symptoms included severe intermittent pain, frequent bad odor, and a white vaginal discharge. She did not, however, currently require treatment or medications for symptoms related to her condition. The Veteran submitted correspondence in October 2020 stating that she required continuous treatments about two to three times per year, which lasted 7 to 14 days and her disability warranted no lower than a 30 percent evaluation. She recounted some recent doctor visit dates, showing treatment for yeast infections, vaginal discharge, and urinary tract infections. The Veteran would purchase over the counter medication for her symptoms and also received several prescriptions. She continued and recounted the functional impact caused by her recurrent vulvovaginitis, stating that it affected her ability to work and her intimacy with her husband. After a review of all the lay and medical evidence of record, the Board finds that the service-connected recurrent vulvovaginitis had manifested in symptoms that do not require continuous treatment. The Board has carefully considered the Veteran's assertions that her disability has required continuous treatment, but neither the VA medical records nor the private examination support that assertion, as they instead make explicit findings that the Veteran's symptoms do not require continuous treatment. Unfortunately, while the Board appreciates and has considered the Veteran's testimony and statements concerning the severity of her symptoms, in regards to whether continuous treatment is required for those symptoms, the Board finds that it must give more probative weight to the competent medical opinion evidence by objective professionals who have the education, training, and expertise to be able to determine diagnoses and the appropriate treatment of such diagnoses. In conclusion, an initial compensable rating is not warranted under the General Rating Formula because the Veteran's recurrent vulvovaginitis does not require continuous treatment. For these reasons, the Board finds that the preponderance of the evidence is against the Veteran's claim and the claim for a higher rating must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question," Walker, 708 F.3d at 1339) or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service," the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought." Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and service, and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker, 703 F.3d at 1336; 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for a left shoulder disability Physical therapy notes from August 2010 reflect that the Veteran was seen for left shoulder pain that began in July 2010. The pain was reported as muscle spasms that were worse with internal rotation. The onset of pain was sudden, as there was no trauma. Dr. J. B. noted that there was left shoulder pain with impingement, poor posture habits, decreased strength, and decreased muscle flexibility. Private treatment records reflect that the Veteran complained of left shoulder pain in August 2010. She indicated that it began the previous night but only hurt with movement. Specifically, bringing her arm up from the side was painful. However, there was no known injury. By September 2010, the left shoulder pain was not improving. Again, it was noted that there was no known injury, but the Veteran did have to do some lifting at work. In October 2010, the Veteran stated that her left shoulder pain had resolved. However, in October 2011, the Veteran reported continued frustration with persistent shoulder pain and indicated that she would like to pursue a breast reduction, as she had been dealing with pain since at least 2006. Dr. J. B. submitted written correspondence in August 2012 reflecting that he had been treating the Veteran for the past several years and she had a history of degenerative arthritis of the shoulders. The Veteran submitted her Application for Compensation, VA Form 21-256 in February 2013 and stated that she had shoulder pain in service which led to arthritis. The Veteran submitted a statement in July 2013 indicating that she experienced limited range of motion and stiffness due to her shoulder arthritis on a bad day. She also had difficulty completing certain tasks such as housework. At the November 2019 Board hearing, the Veteran testified that she injured her shoulders during a motor vehicle accident during service. Not long after, she was injured while playing football and went to sick call. The Veteran estimated that she went to sick call "maybe 10 times" and was put on a PT profile for two weeks. Pursuant to the February 2020 Board remand, the Veteran received a VA examination in August 2020 and the examiner noted a diagnosis of left shoulder strain. The Veteran stated that she had left shoulder pain that began after she was involved in a motor vehicle accident in 1991. She did not immediately go to the hospital but was seen the next day for her injuries. The pain began immediately after the accident with some stiffness and swelling. She was unable to recall any radiology for the shoulder but remembers getting medications. Based on the results of the examination, the examiner concluded that the condition was less likely as not incurred in or caused by service. The available evidence reflected that the Veteran's service treatment records did not indicate any left shoulder concerns and August 2010 treatment records indicate that her left shoulder pain began one month earlier. Further treatment records indicated that the Veteran stated she had no injury to her left shoulder. At the outset, the Board notes that the Veteran claimed entitlement to service connection for left shoulder arthritis. The only evidence of arthritis, however, is a note written by Dr. J. B. While the Board understands that Dr. J. B. refused to release the Veteran's medical records, there is no available medical evidence showing a credible diagnosis of arthritis. The August 2020 VA examination is the most probative evidence available with regards to a current left shoulder disability, as the examiner diagnosed the Veteran with left shoulder strain following a thorough examination. Left shoulder arthritis was not diagnosed at the time. The Board also finds the August 2020 VA medical opinion to be the most probative evidence of record. The examiner's findings are credible and competent, as they were provided with thorough rationales with regards to the Veteran's left shoulder disability and its lack of connection to service. The examiner provided a thorough opinion explaining why it was less likely than not that the Veteran's left shoulder disability was the result of her military service, concluding that the complaints of pain did not begin until almost two decades following separation. The Board notes that the Veteran is competent to report a motor vehicle accident and finds her highly credible. However, with respect to the subject claim, the contemporaneous medical evidence reflects that the Veteran did not have complaints of left shoulder pain at the time of the accident. Furthermore, the private treatment records from 2010 reflect initial complaints of left shoulder pain and the Veteran stated that she did not have an injury that caused it. While the Veteran is considered competent to report that she complained of left shoulder problems during service, the competent, credible medical records reflect that she first complained of left shoulder pain with an unknown etiology. The Board finds these contemporaneous 2010 private treatment records highly probative. Accordingly, as the evidence of record also includes competent medical opinions regarding causation based on an accurate interpretation of the record, the Board finds that the claim is not in equipoise, that a preponderance of the evidence is against the claim, and that service connection for a left shoulder disability is therefore not warranted. REASONS FOR REMAND Entitlement to a compensable rating for migraines prior to October 11, 2019 The parties to the October 2020 JMR found that the Board did not provide an adequate statement of reasons or bases for its assignment of October 11, 2019, as an effective date for a 50 percent disability evaluation, as the Board did not address evidence in the record that relates to symptomatology for this time period. The Board notes that the Veteran received a VA examination in October 2019, but the next previous VA examination was in November 2013. In light of this time period, the Board finds that the Veteran should be given a chance to supplement the record with a statement highlighting the severity of her migraines prior to October 11, 2019, and then the record should be further developed by way of a retrospective opinion regarding the severity of her migraines for this period by an appropriate VA examiner. Entitlement to service connection for GERD Entitlement to service connection for Barrett's esophagus Entitlement to service connection for gastritis At the outset, the Board notes the Veteran's correspondence, submitted in October 2020, indicating that her GERD, Barrett's esophagus, and gastritis, were not claimed as secondary to her recurrent vulvovaginitis. The Veteran received VA examinations for her conditions in August 2020 and the examiner found that they were less likely than not incurred in or caused by service. The examiner found that there were no service treatment records to support the onset of GERD or Barrett's esophagus during active duty, and gastritis was diagnosed 11 years post-discharge. The Board notes that a medical opinion based solely on the absence of documentation in the record is inadequate and that a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Therefore, these claims must be remanded for a new examination. Entitlement to service connection for residuals of uterine fibroids, to include as secondary to recurrent vulvovaginitis Entitlement to service connection for hysterectomy, claimed as secondary to uterine fibroids Pursuant to the February 2020 Board remand, the Veteran received a VA examination in August 2020 and the examiner noted that the Veteran underwent a hysterectomy in February 2009 to remove her uterus due to her uterine fibroids. As a result, the Veteran did not have a current diagnosis of uterine fibroids. The Board finds the examiner's opinion inadequate, as she did not opine on the current residuals of uterine fibroids. Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision."). Regarding the claim for entitlement to service connection for hysterectomy, to include as secondary to uterine fibroids, this issue is intertwined with the claim for service connection for uterine fibroids, which is being remanded for further development. Accordingly, it must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated.) Therefore, these claims must be remanded for a new examination Entitlement to service connection for lumbosacral strain The Veteran received a VA examination in July 2020 and the examiner diagnosed a lumbosacral strain. She found, however, that the lumbosacral strain during service was acute, as there was no evidence of chronicity of care. The separation examination also did not indicate any chronic injuries from the motor vehicle accident and the follow-up examination following the football injury was normal. As such, the examiner concluded that the condition was less likely as not incurred in or caused by service. The Board finds the examination inadequate, as the evidence reflects that the Veteran's personal physician, Dr. J. F.-H., performed an x-ray in January 2014 that revealed mild degenerative changes of the thoracic spine without evidence of fracture or subluxation. Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision.") Therefore, this claim must be remanded for a new examination. Entitlement to service connection for a neck condition The Veteran received a VA examination in July 2020 and the examiner noted a diagnosis of degenerative arthritis. Based on the results of the examination, she concluded that the condition was less likely as not incurred in or caused by service, as she was unable to find any objective data to support any neck condition directly related to active duty service from 1987 to 1992. The Board notes that a medical opinion based solely on the absence of documentation in the record is inadequate and that a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Therefore, this claim must be remanded for a new examination. Entitlement to service connection for fatigue is remanded. The Veteran received a VA examination in July 2020 and the examiner noted a diagnosis of generalized fatigue. Based on the results of the examination, she concluded that the condition was less likely as not incurred in or caused by service, as there were no service treatment records or evidence available to support that fatigue started during active duty or was caused by any active duty related incident. The Board notes that a medical opinion based solely on the absence of documentation in the record is inadequate and that a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Therefore, this claim must be remanded for a new examination. The matters are REMANDED for the following action: 1. Provide the Veteran with an opportunity to submit a statement with regards to the impact of her migraine condition prior to October 11, 2019. 2. Obtain an retrospective opinion from an appropriate VA examiner to help determine the severity of the Veteran's migraines for the period prior to October 11, 2019. The claims file must be made available to and reviewed by the examiner, and the examiner must specify in the examination report that these records have been reviewed. 3. Schedule the Veteran for appropriate VA examination to determine the nature and etiology of her GERD. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's GERD had its onset in service or is related to service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record, and specifically address the Veteran's statements of continuous stomach symptoms since service in reaching the examiner's opinion regarding the etiology of her current GERD. 4. Schedule the Veteran for appropriate VA examination to determine the nature and etiology of her Barrett's esophagus and gastritis. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's Barrett's esophagus and gastritis had their onset in service or are related to service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record, and specifically address the Veteran's statements of continuous esophageal symptoms since service in reaching the examiner's opinion regarding the etiology of her current Barrett's esophagus and gastritis. 5. Provide the Veteran with a VA opinion to determine the nature and etiology of her uterine fibroids. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran's uterine fibroids had its onset in service or is otherwise the result of an incident in service. The examiner is also asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's uterine fibroids were caused or aggravated by her recurrent vulvovaginitis. Aggravation is defined for these purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. If the examiner finds that the Veteran's uterine fibroids have been permanently aggravated/worsened by her service-connected condition, the degree of worsening should be identified. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 6. Provide the Veteran with a VA opinion to determine the nature and etiology of any diagnosed lumbar disability. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran's lumbar disability had its onset in service or is otherwise the result of an incident in service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record, and specifically address the Veteran's statements of continuous lumbar symptoms since service in reaching the examiner's opinion regarding the etiology of any currently diagnosed lumbar disability. 7. Schedule the Veteran for appropriate VA examination to determine the nature and etiology of her fatigue. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's fatigue had its onset in service or is related to service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record, and specifically address the Veteran's statements of continuous stomach symptoms since service in reaching the examiner's opinion regarding the etiology of her current fatigue. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Daniels, 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.