Citation Nr: 21042312 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 16-58 845 DATE: July 12, 2021 ORDER New and material evidence having been received, the appeal to reopen the claim of service connection for irregular menses is granted. Entitlement to service connection for irregular menses is denied. Entitlement to service connection for chronic fatigue syndrome, claimed as an undiagnosed illness related to service in the Persian Gulf, is denied. REMANDED Entitlement to a rating in excess of 10 percent for left achilles tendonitis is remanded. Entitlement to a compensable rating for seasonal allergic rhinitis is remanded. Entitlement to service connection for anemia is remanded. FINDINGS OF FACT 1. Evidence received since the final June 2005 rating decision contains information not previously submitted which, when viewed in light of the entire record, has a reasonable possibility of substantiating the claims on appeal. 2. A preponderance of the evidence is against finding that the Veteran's irregular menses are were caused or aggravated by her active service. 3. A preponderance of the evidence indicates the Veteran does not manifest chronic fatigue syndrome, and that her fatigue is due to other diagnosed disorders. CONCLUSIONS OF LAW 1. New and material evidence having been received, the criteria to reopen the claim of service connection for irregular menses have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for irregular menses have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for chronic fatigue syndrome, to include as due to Gulf War undiagnosed illness, have not been met. 38 U.S.C. §§ 1110, 1117, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from October 1993 to February 2005, to include service in Persian Gulf. This matter comes before the Board of Veterans' Appeals (Board) on appeal of September 2013 and December 2015 rating decisions issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for irregular menses Generally, a claim which has been denied in an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component whether there is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a June 2005 rating decision, the AOJ denied entitlement to service connection for irregular menses, stating the condition was a congenital or developmental defect unrelated to service. The Veteran did not appeal this decision within one year, and it became final. The AOJ declined to reopen the claim in June 2008 and December 2015 decisions, the latter of which is the rating decision on appeal. Since the final decision, the Veteran has provided hearing testimony detailing the history of her irregular menses, to include an inservice onset. She has also provided VA and private treatment records and undergone multiple VA examinations. The Board finds this evidence to be new, as it was not available to the AOJ at time of the June 2005 decision, and relevant, and if true it could establish a nexus between her irregular menses and active service. As such, the claim is reopened and will be reviewed on the merits. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. To establish service connection, the evidence must show competent evidence of (1) a present disability, (2) an 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). Whenever 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 veteran. 38 U.S.C. § 5107(b). A valid service connection claim requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). However, the presence of a disability at any time during the claim process or relatively close thereto can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall afford the benefit of the doubt to the claimant. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3. When a claimant seeks benefits and the weight of the evidence amounts to relative equipoise, the claimant shall prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Therefore, a preponderance of the evidence must weigh against the Veteran's claim in order for service connection to be denied. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). 2. Entitlement to service connection for irregular menses As noted above, the AOJ initially denied entitlement to service connection for irregular menses on the basis that it was a congenital condition unrelated to military service. In her December 2004 report of medical history, given at separation, the Veteran reported when she returned from Iraq in February 2004 she had stopped having her period, but was treated with medication to restart her cycle and had had a regular menstrual cycle since. The veteran then contradicter herself during a November 2015 VA examination, when she described a history of irregular menses that existed prior to service as well as reporting to an Army gynecologist during service for symptoms of amenorrhea (the absence of menses), which was negative for pathology. She again stated she had been given a progesterone challenge which resulted in menses. The Veteran admitted taking contraception pills in a continuous manner in order to postpone her menses while she was deployed overseas. Upon return from deployment, she reported amenorrhea, but delivered a child in 2006. The Veteran indicated that she subsequently initiated contraception with an intrauterine device (IUD), and since then had not experienced menses. The examiner observed no current signs or symptoms and noted there were many pathological reasons females did not have regular menstrual cycles, to include pregnancy and the implant of an IUD, which in the Veteran's case covered the time from separation to the present examination. As such, the examiner opined that the Veteran's reported preservice irregular menses were not aggravated beyond their natural progression by her active service. During an August 2016 hearing conducted by the AOJ, the Veteran reported having no menstrual issues prior to service. She related that during service she did not want to have a cycle when going out into the field and was told by another soldier that by continuously taking birth control pills she could skip her menstrual cycle. As she had in December 2004, the Veteran reported that she did not experience menses after returning from the field assignment, reported to sick call and received medication which successfully restarted her menses. However, she testified that when she deployed to Iraq, she was again amenorrheic for the duration of the deployment and for several months after returning, which she attributed to the stress of being deployed. She confirmed giving birth to a child in 2006 and reported being amenorrheic to the present day. According to August 2018 private treatment records, the Veteran described irregular menses every 28 days, lasting four to five days each, requiring her to change her tampon five to six times per day. She stated that this pattern began in January 2017 after the removal of an IUD, and that she had been using IUDs from 2004 to 2017. The treating clinician recorded an impression of dysfunctional uterine bleeding with suspected fibroid and polyp, and the Veteran successfully underwent a polypectomy myomectomy later that month. She also began taking an oral hormone to prevent pregnancy. The Veteran was afforded an additional VA examination in March 2020. The examiner noted the Veteran manifested no symptoms related to a gynecological condition, to include irregular menses. After review of the evidence of record, the Board finds that a preponderance of the evidence is against concluding that the Veteran's irregular menses were caused or aggravated by her military service. While the Veteran has variously reported the onset of irregular menses prior to and during service, she has indicated that her in-service onset of amenorrhea was due to continuously taking oral birth control. She also reported to her August 2018 treating gynecologist that she had an IUD implanted in 2004 when she returned from Iraq but was still in service. Additionally, while the Veteran has reported irregular menses continuously since her return from overseas deployment, during her December 2004 separation examination she stated that when she returned from Iraq she was amenorrheic but was seen at the base clinic and given medication which successfully restarted her cycle, which had continued normally since. The Board observes that the Veteran's description regarding the history of her irregular menses is inconsistent. In this case, the Board finds that that Veteran's statements in her service treatment records are more reliable evidence and have more probative value than her more recent lay statements submitted in support of this claim. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). As such, the most probative evidence of record indicates the Veteran's menses were regular at separation and therefore not aggravated beyond their normal progression by service. The Board also finds the November 2015 VA examiner opinion to be highly probative, as it is based upon examination of the Veteran, takes her lay statements into account and notes the Veteran's post-service pregnancy and use of an IUD in providing an alternative etiology for her amenorrhea. The Board observes that there is no opinion to the contrary other than that of the Veteran. However, as a lay witness the Veteran is not competent to attribute her symptoms to a specific diagnosis, nor is she able to provide a nexus opinion on this issue. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As such, the Board assigns more probative value to the opinion of the expert examiner. The Board acknowledges the Veteran's 2018 private treatment records indicating irregular menses, but notes these symptoms coincided with and were attributed to the January 2017 removal of her IUD, and that there are no treatment records indicating further symptoms. As such, the Board finds that the most probative evidence of record is against finding that the Veteran's irregular menses first manifested in or were otherwise caused or aggravated by her active service. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 49. 3. Entitlement to service connection for chronic fatigue syndrome, claimed as an undiagnosed illness related to service in the Persian Gulf The Veteran asserts entitlement to service connection for chronic fatigue syndrome, claimed as an undiagnosed illness related to service in the Persian Gulf. She served in the Southwest Asia theater of operations from March 31, 2003 to February 15, 2004. Service connection for chronic, undiagnosed illness (or a medically unexplained chronic multisymptom illness such as fibromyalgia, chronic fatigue syndrome, or functional gastrointestinal disorders) arising from service in Southwest Asia during the Gulf War may be established under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. The Board observes that the Veteran has been granted service connection for both fibromyalgia and irritable bowel syndrome related to Gulf War Syndrome, as well as for posttraumatic stress disorder (PTSD). For purposes of § 3.317, "objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). For purposes of § 3.317(a)(1), signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to: fatigue; signs or symptoms involving skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b). The Veteran was afforded a comprehensive VA Gulf War Syndrome examination in September 2013. She reported feeling tired all the time due to lack of sleep, with difficulty falling asleep and many awakenings during the night with an inability to go back to sleep. She also stated her belief that her blood pressure medication was making her tired. The examiner noted the Veteran had neuropsychological symptoms of sleep disturbance attributed to her PTSD. She was afforded an additional VA Gulf War examination in November 2015. The examiner observed there were many reasons for an individual to have sleeping problems, noting her diagnosis of obstructive sleep apnea and other medical issues, but stated there was no evidence the Veteran's fatigue was solely due to her PTSD. During an August 2016 decision review officer hearing, the Veteran stated that had always experienced fatigue, but remembered first discussing it when she was on active duty, citing overexertion due to required physical activities. July 2016 private treatment records confirm the she was diagnosed with "chronic fatigue" by her treating nurse practitioner and reported feeling very tired "on and off for a year at least," which she also attributed to an iron deficiency and possibly a thyroid issue. An October 2016 sleep study confirmed the diagnosis of obstructive sleep apnea and the sleep clinician recommended a nasal CPAP machine to relieve symptoms of daytime hypersomnolence. The Veteran was afforded an additional Gulf War examination in October 2016, during which she reported difficulty staying asleep, awakening unrefreshed and daytime somnolence. The examiner noted the Veteran was diagnosed with obstructive sleep apnea and prescribed a CPAP and observed that a March 2015 private rheumatologist had declined to provide a diagnosis of chronic fatigue syndrome when diagnosing fibromyalgia. Attributing the Veteran's fatigue symptoms to obstructive sleep apnea, the examiner stated that the Veteran did not meet the diagnostic criteria for chronic fatigue syndrome, as it was due to a diagnosable, medically explainable etiology and therefore less likely than not attributable to her service in the Persian Gulf. In April 2017 correspondence, the Veteran's treating nurse practitioner observed she suffered from PTSD, headaches, fibromyalgia, irritable bowel syndrome, hypertension, a left achilles disorder, and environmental intolerance. The practitioner stated that the Veteran suffered chronic pain and fatigue due to her disorders, and that most of her symptoms were related to PTSD and fibromyalgia, with the others being secondary to these two conditions. After review of the evidence of record, the Board finds that service connection for chronic fatigue syndrome is not warranted. Although the Veteran has reported symptoms of chronic fatigue throughout the period on appeal, she has personally attributed these symptoms to anemia (discussed below), blood pressure medication, and an inability to fall and remain asleep. While her treating nurse practitioner recorded a notation of chronic fatigue, the same clinician later noted that this symptom was due to her fibromyalgia and PTSD. Similarly, a September 2013 VA examiner noted that the Veteran manifested sleep disturbance related to her PTSD symptoms, and a subsequent VA examiner attributed the Veteran's daytime somnolence to her diagnosed obstructive sleep apnea. The Board observes the AOJ denied a claim for obstructive sleep apnea in an unappealed January 2016 rating decision. As noted by the October 2016 VA examiner, the Veteran does not meet the diagnostic criteria for chronic fatigue syndrome, as her symptoms are due to diagnosable and medically explained disorders. As there is no valid diagnosis of chronic fatigue syndrome, service connection is not warranted on a presumptive basis as due to an undiagnosed illness related to service in the Persian Gulf. Similarly, as her symptoms of fatigue are attributable to other diagnosed disorders, service connection is not warranted on a direct basis. The only remaining evidence in favor of the Veteran's claim are her own lay statements. However, as noted above, the Veteran has attributed her fatigue to several different causes and is not competent as a lay witness to provide a diagnosis or opine as to the etiology of her symptoms. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Therefore, the Board assigns more probative weight to the objective medical and competent opinion evidence of record which establishes that the Veteran does not have a valid diagnosis of chronic fatigue syndrome and attributes her symptoms to separate disorders. Additionally, since the Veteran's fatigue symptoms are either contemplated by the 70 percent rating for her service-connected PTSD or attributable to a disorder for which service connection has already been denied, any additional compensation is not warranted. 38 C.F.R. § 4.14. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 49. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for left achilles tendonitis is remanded. 2. Entitlement to a compensable rating for seasonal allergic rhinitis is remanded. The Veteran asserts entitlement to higher ratings for her service-connected left achilles tendonitis and seasonal allergic rhinitis. The Board observes that the Veteran's last VA examinations for these disabilities occurred in September 2013. While the passage of time alone, without an allegation of worsening, does not warrant a new examination, a material change in the condition or problems and inconsistencies in prior examination(s) can so warrant. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). In this case, the Veteran reported during an August 2016 AOJ hearing that she experiences flareups of the left ankle requiring her to wear a prescribed boot two to three times per month for up to five days at a time. She also described flareups of allergy symptoms that "almost always turn into a sinus infection." Private treatment records also indicate that the symptoms of both disabilities have worsened. Given the staleness of the most recent VA examinations and the evidence of worsening ankle and rhinitis symptoms, remand for new VA examinations is warranted. 3. Entitlement to service connection for anemia is remanded. The Veteran asserts that she suffers from anemia as a result of her active service. Her VA treatment records indicate she was prescribed an iron supplement from at least July 2014 to October 2017 and note "iron deficiency anemia, unspecified." According to March 2015 private treatment records, the Veteran reported being "constantly iron deficient" and stated she had been on iron supplements since childhood, which if stopped rendered her anemic. During an August 2016 AOJ hearing, she stated she was diagnosed with anemia during service and prescribed iron supplements, which she continued to the present day. She also indicated she was unaware of the underlying cause of her iron deficiency. The Board observes that the Veteran has not been afforded a VA examination for anemia, and the disorder is not referenced in her several Gulf War examinations. A VA medical examination is required when there is competent evidence of a current disability, evidence of an inservice event, injury or disease, indication that a current disability may be service related (to include secondary service connection), and there is otherwise insufficient medical evidence to make a decision. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. Id. at 83. In this case, the Board finds that there is evidence of a current disability during the period on appeal, lay testimony attributing an inservice onset to the disability and otherwise insufficient evidence medical evidence to make a decision. As such, the "low" bar of McLendon has been cleared, and remand to afford the Veteran a VA examination is required. The matters are REMANDED for the following action: 1. Associate with the claims file any outstanding VA and relevant private treatment records. 2. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of her service-connected left ankle disability. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. The Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and the examiner should provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares and upon repetitive use. 3. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of her service-connected allergic rhinitis. Access to the electronic claims file must be available to the examiner for review. In accordance with the latest worksheets for rating allergic rhinitis, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints and the nature and extent of her disability. The examiner's attention is directed to private treatment records indicating a recent diagnosis of "environmental intolerance." 4. Schedule the Veteran for a VA examination to ascertain the nature and etiology of her claimed anemia. The examiner is asked to identify by diagnosis any anemia during the period on appeal, and to indicate the onset of the disorder. The examiner is then asked to opine whether any diagnosed anemia at least as likely as not (i.e., 50 percent or greater probability) first manifested in or was otherwise caused or aggravated by the Veteran's active service. A complete rationale must be provided for any opinion offered. In formulating the requested opinion, the examiner is asked to address: VA treatment records noting "anemia, unspecified" and the prescription of iron supplements. March 2015 private treatment records in which the Veteran reported being "constantly" iron deficient and using iron supplements since childhood. The Veteran's August 2016 DRO hearing testimony in which she reported being diagnosed with anemia during active service and prescribed iron supplements. 5. Then readjudicate the claims. If any benefit sought is not granted, the Veteran and her representative should be furnished an SSOC and given the requisite opportunity to respond before the case is returned to the Board. ERIC MINE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. C. Schumacher, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.