Citation Nr: 21041398 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-62 492A DATE: July 9, 2021 ORDER Entitlement to service connection for a pelvic disability is granted. Entitlement to service connection for hypertension is granted. Entitlement to service connection for lumbar strain, degenerative arthritis of the spine, spinal stenosis, and intervertebral disc syndrome (IVDS) is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's current pelvic disability is related to service. 2. The evidence is at least evenly balanced as to whether hypertension manifested in service. 3. The evidence is at least evenly balanced as to whether the Veteran's current back disability is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a pelvic disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for lumbar strain, degenerative arthritis of the spine, spinal stenosis, and IVDS have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1986 to October 1987. This case initially came to the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to service connection for pelvic inflammatory disease to include fibroid, hypertension, low back strain, and PTSD, claimed as depression, generalized anxiety disorder, mood disorder, and bipolar disorder,. . In November 2019, the Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. In February 2020, the Board remanded the matters for further evidentiary development. While in remand status, in an April 2021 rating decision, the RO granted service connection for posttraumatic stress disorder (PTSD), claimed as depression, generalized anxiety disorder, mood disorder, and bipolar disorder, and assigned a 30 percent rating effective February 10, 2014. The grant of service connection for PTSD, claimed as depression, generalized anxiety disorder, mood disorder, and bipolar disorder constitutes a full award of the benefits sought on appeal with respect to this issue. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of downstream elements such as the disability rating or effective date assigned). The record currently available to the Board contains no indication that the Veteran initiated an appeal with the initial rating or effective date assigned for PTSD, claimed as depression, generalized anxiety disorder, mood disorder, and bipolar disorder. Thus, the matter is not in appellate status. Given the symptoms in this case, the claim for service connection for pelvic inflammatory disease, to include a fibroid disorder has been more broadly characterized as entitlement to service connection for pelvic disability, to include pelvic pain, pelvic inflammatory disease, abdominal pain, and fibroid disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). The issue has been recharacterized accordingly on the title page. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hypertension is a listed chronic disease. A diagnosis is not required to meet the current disability requirement and pain alone can constitute disability if it causes impairment in earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018). 1. Pelvic Disability In this case, the evidence of record indicates a current disability. Specifically, a July 2020 VA examination report shows a diagnosis of uterine fibroid the Veteran reported ongoing intermittent pelvic pain. At her November 2019 Board hearing, the Veteran testified that she was treated for pelvic inflammatory disease in service and has continued to have problems with such condition since service. She asserted that her pelvic pain impairs her earning capacity. The Veteran's lay statements reflect that there is impairment of the pelvic that causes impairment in earning capacity. Consequently, the first element of service connection has been met. The evidence of record also indicates that the in-service disease requirement has been met. The Veteran's service treatment records (STRs) shows that she was admitted and treated for pelvic inflammatory disease in February 1987. At the Veteran's October 1987 separation examination, she reported having treatment for a female disorder. At her November 2019 Board hearing, the Veteran testified that she was treated for pelvic inflammatory disease in service and has continued to have problems with such condition since service. Additionally, at the July 2020 VA examination, the Veteran reported that she developed right sided pelvic pain that kept worsening in service, and was diagnosed with pelvic inflammatory disease, then hospitalized and treated. She reported she has had ongoing problems with pelvic pain and fibroids since that time. The Veteran noted pain in right and left lower abdomen. Based on the evidence contained in the Veteran's STRs and her competent and credible statements, the Board finds that the second element of service connection has been met. With respect to a nexus, the Veteran underwent a VA examination in July 2020. The examiner opined that the Veteran's pelvic inflammatory disease, to include fibroid disorder was less likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that during service, pelvic inflammatory disease, was acute only. The Veteran was treated with antibiotics and the condition resolved without complication. The examiner further explained that the Veteran was able to maintain pregnancy after treatment. The only evidence of uterine fibroids is the report a uterine fibroid noted as an incidental finding on a CT scan following an MVA. The examiner noted the Veteran has since had normal gynecological evaluation without evidence of an ongoing disorder related to uterine fibroids. The examiner further noted no evidence that a single episode of pelvic inflammatory disease is a cause of uterine fibroid development. In this case, the Board finds the July 2020 VA opinion that the Veteran's pelvic inflammatory disease, to include fibroid disorder is not related to service of little, if any, probative value. The examiner failed to consider the competent and credible statements from the Veteran of the onset of his pelvic symptoms in service and the continuation of symptoms since separation. With respect to diagnoses for pelvic inflammatory disease and fibroid disorder, as noted, a specific diagnosis is not required in order to meet the current disability requirement. Saunders, 886 F.3d at 1364-65. The STRs, competent and credible lay statements of pelvic symptoms in-service, and the continuation of symptoms since service, are sufficient to establish that the Veteran's pelvic disability is related to service. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006)( [N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself ); 38 C.F.R. § 3.303(a) (service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces). There is no evidence to the contrary. For the reasons set forth above, the evidence is at least evenly balanced as to whether the Veteran's pelvic disability had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in the Veteran's favor, service connection is warranted for pelvic disability. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Hypertension Service connection for certain chronic diseases, including hypertension, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 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 such disease during the period of service. 38 C.F.R. § 3.307 (a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307, and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303 (b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For VA rating purposes, hypertension means that diastolic blood pressure is predominately 90 mm. or greater; isolated systolic hypertension means that the systolic blood pressure is predominately 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. A 10 percent disability rating is warranted when diastolic pressure is predominantly 100 or more or when continuous medication is shown necessary for control of hypertension with a history of diastolic blood pressure predominantly 100 or more, or when systolic pressure is predominantly 160 or more. At the Veteran's October 1987 separation examination, a blood pressure reading of 120/80 was noted indicating an elevated systolic blood pressure reading and hypertension stage 1 diastolic blood pressure reading. At her November 2019 Board hearing, the Veteran testified that she was advised that she had high blood pressure before discharge. She stated that she did not have high blood pressure prior to service, and that after service she did not go to the doctor anymore. A February 2021 VA examination report shows the Veteran reported the onset of hypertension was around 1987 on discharge physical. She continued to have high blood pressure outside of service and is now on four blood pressure medications. The Veteran's post-service private and VA treatment records show a history of hypertension. In February 2021 the Veteran was afforded a VA examination. The examiner opined that the Veteran's hypertension was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that Veteran has a diagnosis of hypertension and that a March 2020 service treatment record listed medications for hypertension which include: Amlodipine, Carvedilol, Hydrochlorothiazide, and losartan. The examiner concluded that no nexus has been established within medical records to support any signs/symptoms, complaints, or diagnosis of hypertension while in service. As noted, the October 1987 separation examination revealed an elevated systolic blood pressure reading and stage 1 hypertension diastolic blood pressure reading. Post service treatment records also reveal a current diagnosis of hypertension. As set forth above, under section 3.303(b), where the record contains evidence of a chronic disease such as hypertension in service, subsequent manifestations of the same chronic disease are service connected, unless clearly attributable to intercurrent causes. Thus, if a veteran can prove a chronic disease "shown in service," and there are no intercurrent causes, the manifestation of the chronic disease present at the time the veteran seeks benefits establishes service connection for the chronic disease. Walker, 708 F.3d at 1336. The VA medical examiner rendered the opinion that the Veteran's current hypertension was not related to her active service because medical records do not support any signs/symptoms, complaints or diagnosis of hypertension while in service. However, a nexus is not required when the same chronic disease manifests in service and after service. Groves v. Peake, 524 F.3d 1306, 1309-1310 (2008) (medical nexus evidence demonstrating an etiological link is not necessary to prove service connection when evidence shows that a veteran had a chronic disease in service and that he still has the same chronic disease). While Veteran's elevated blood pressure reading in service did not meet VA's definition of hypertension, there is no requirement for such a diagnosis in service or within the one year presumptive period. See Traut v. Brown, 6 Vet. App. 495 (1994) (establishing service connection on a presumptive basis does not require that a chronic disease be diagnosed within the applicable time period; rather, symptoms that manifest within this time period may subsequently be determined to have been early manifestations of a chronic disease). 38 C.F.R. § 3.303(a) requires an adjudicator to review the entire record, including lay statements, and give due consideration to VA policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. After so doing, and with reasonable doubt resolved in the Veteran's favor, the Board finds that the evidence of an elevated blood pressure reading required medication in service, the Veteran's lay statements regarding the onset and course of treatment for her hypertension, and the clinical evidence showing a current diagnosis of hypertension, provide a sufficient basis to find that this chronic disease manifested in service. Entitlement to service connection for hypertension is therefore warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.303(b), 3.102. 3. Back Disability In this case, the evidence of record demonstrates that the requirement for a current disability has been met. Specifically, a November 2012 private treatment record shows a diagnosis of low back strain. Additionally, a July 2020 VA examination reports shows diagnoses of degenerative arthritis of the spine, spinal stenosis, and intervertebral disc syndrome IVDS. Thus, the first element of service connection has been met. The Veteran's STRs do not show complaints, treatment, or diagnosis of a back condition. At her November 2019 Board hearing, the Veteran testified that she injured her back while doing pushups with rucksack in service. She asserted having back pain in service and the continuation of back pain since service. A July 2020 VA examination report shows the Veteran reported that when she initially injured her back in service while doing push-ups with her rucksack, she did not seek evaluation at that time and pushed through her training. She noted the pain continued but was tolerable. Here, the competent and credible lay statements from the Veteran demonstrates she exhibited symptoms during service. This is sufficient to meet the second element of service connection. In a July 2020 VA examination report, the examiner opined that the Veteran's back disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran's STR are negative for any evidence of a back injury or back complaints. The Veteran reports onset of back pain during service while doing pushups while wearing a rucksack. There is no evidence of any ongoing back problems, evaluation, or treatment during service and the Veteran's separation exam medical history denies ongoing back pain. The examiner further explained that there is no objective evidence of any back conditions or complaints until 2012 when the Veteran is evaluated for an MVA and diagnosed with a low back strain. There is another gap in subjective reports or objective treatment for a low back condition, including chronic low back pain. The examiner noted that in 2019, the Veteran was evaluated for reports of low back pain with a reported history of multiple motor vehicle collisions. In February 2020, the Veteran has evidence of treatment for back pain that is reported to have been ongoing for 5 years. The examiner further noted that there is a clear lack of evidence of continuity of care for this Veteran, with a nearly 25-year gap in evidence of care from separation until first evaluation of back pain following MVA. The examiner concluded that if the Veteran did experience a back injury during service, this condition appears to have been acute only and resolved prior to separation from active duty, as recurrent back pain is denied on separation medical history. In this case, the Board finds the July 2020 VA opinion that the Veteran's back disability is not related to service is of little, if any, probative value. Here, the examiner relied on the absence of documentation in the STRs and did not consider the Veteran's lay statements of back symptoms in service, and the continuation of those symptoms in the years since service. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, failed to consider whether the lay statements presented sufficient evidence of the etiology [of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence ). The Board could remand the claim for another medical opinion, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Gardner-Dickson v. Wilkie, 33 Vet. App. 50, 62 (2020) (Order) (denying petition for a writ of mandamus challenging a remand, but agreeing "with the petitioner that it 'would not be permissible for VA to undertake . . . additional development if a purpose was to obtain evidence against an appellant's case.'") (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)); Andrews v. McDonough, __ Vet. App. __, No. 19-0352, 2021 U.S. App. Vet. Claims LEXIS 1091, at *23 (June 22, 2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). The current diagnoses, the competent and credible lay statements of back symptoms in-service, and the continuation of symptoms since service, are sufficient to establish that the Veteran's back disability is related to service. (Continued on the next page) For the reasons set forth above, the evidence is at least evenly balanced as to whether the Veteran's back disability is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in the Veteran's favor, service connection is warranted for back disability. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, 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.