Citation Nr: 22018929 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-39 375 DATE: March 30, 2022 ORDER Entitlement to service connection for sinusitis is granted. Entitlement to service connection for an ovarian cyst is granted. REMAND Entitlement to service connection for a lung disability is remanded. Entitlement to service connection for a liver disability is remanded. Entitlement to service connection for radiculopathy of the sciatic nerve for the right lower extremity is remanded. Entitlement to service connection for radiculopathy of the sciatic nerve for the left lower extremity is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to an initial compensable disability rating for service-connected migraines is remanded. Prior to February 25, 2013, entitlement to an initial compensable rating for service-connected obstructive sleep apnea (OSA) is remanded. Beginning February 25, 2013, entitlement to an initial disability rating greater than 50 percent for service-connected OSA is remanded. Entitlement to an initial disability rating greater than 10 percent for service-connected gastroesophageal reflux disease (GERD) and dyspepsia is remanded. Entitlement to an initial compensable disability rating for service-connected uterine leiomyoma of the uterus (hereafter referred to as a "gynecological disability") is remanded. Prior to January 16, 2019, entitlement to an initial compensable disability rating for service-connected varicose veins of the right lower extremity is remanded. Prior to January 16, 2019, entitlement to an initial compensable disability rating for service-connected varicose veins of the left lower extremity is remanded. Beginning January 16, 2019, entitlement to a disability rating greater than 10 percent for service-connected varicose veins of the right lower extremity is remanded. Beginning January 16, 2019, entitlement to a disability rating greater than 10 percent for service-connected varicose veins of the left lower extremity is remanded. Entitlement to an initial compensable disability rating for service-connected dermatitis is remanded. Prior to January 16, 2019, entitlement to an initial disability rating greater than 10 percent for service-connected thoracolumbar spine degenerative disc disease and scoliosis (hereafter referred to as a "low back disability") is remanded. Beginning January 16, 2019, entitlement to an initial disability rating greater than 20 percent for service-connected low back disability is remanded. FINDINGS OF FACT 1. The evidence of record supports finding that the Veteran's sinusitis occurred in, or is the result of, her period of active duty service. The evidence of record supports finding that the Veteran's ovarian cyst occurred in, or is the result of, her period of active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sinusitis are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for entitlement to service connection for an ovarian cyst are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1992 to June 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 Decision Letter by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A Board hearing was conducted via the virtual hearing process. A transcript of this hearing is contained within the electronic claims file. For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 1110. To establish service connection, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 133537 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1380 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). 1. Entitlement to service connection for sinusitis is granted. For this condition, the Veteran argues that her upper respiratory problems began in 1992 at Fort McChord; she alleges problems ever since that worsened when she was stationed in San Antonio, Texas, and Turkey. Tr. at 10. In February 2012, the Veteran received a plethora of VA examinations. One of which was for her upper respiratory conditions. The examiner diagnosed her with allergic rhinitis (since June 2008) and chronic sinusitis (since December 2006). As to the former, the examiner noted that it was preexisting and was not incurred in or worsened beyond natural progression by military service. As to the latter, the examiner simply stated "Resolved. Normal sinus Imaging. No functional limitations." This opinion is inadequate and cannot be used for adjudication purposes. To start, it does not address the Veteran's lay contentions. See Miller v. Wilkie, 32 Vet. App. 249, 260 (2020). It also provides no actual medical nexus opinion. See Jones v. Shinseki, 23 Vet. App. 382, 387 (2010). But this issue does not require a medical nexus opinion, and the Board has all the evidence it needs to award service connection. The examiner concedes that the Veteran has "chronic sinusitis" that began during her period of active duty. While sinusitis is not a chronic condition recognized for presumptive service connection under VA law, see 38 C.F.R. § 3.309(a), it necessarily follows that a chronic condition diagnosed during service is entitled to service connection. The Veteran's sinusitis medically has been described as "marked by long duration or frequent recurrence: not acute." Chronic, Merriam-Webster's Collegiate Dictionary (11th ed. 2003). Merely because the Veteran currently was not experiencing sinusitis at the time of her examination, as noted by the "Normal Sinus Imaging," does not mean that she does not still carry that diagnosis of chronic sinusitis. It simply means that, at the time of examination, her sinusitis was not manifesting symptoms. But that is not the crux of a service-connection claim. The Veteran cannot and should not be penalized because the symptoms of her chronic condition happen to be absent, despite a clinical diagnosis. Thus, the Board is satisfied that the elements of service connection have been established. The Veteran was diagnosed with a chronic condition during service. That diagnosis remains todayand need not manifest symptoms to warrant service connection. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). Therefore, the Board does not need an opinion from a medical professional linking the two. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). 2. Entitlement to service connection for an ovarian cyst is granted. A February 2012 VA gynecological examination diagnosed the Veteran with an ovarian cyst (since August 2006) and leiomyoma of the uterus, also known as uterina fibroids (since October 2006). The Veteran was awarded service connection for the latter but not the former. In its reasons for denying the former, the agency of original jurisdiction (AOJ) stated that "[w]hile your service treatment records reflect complaints, treatment, or a diagnosis similar to that claimed, the medical evidence supports the conclusion that a persistent disability was not present in service." The AOJ's conclusion, however, does not comport with the evidence of record. The VA gynecological examination report noted that the Veteran currently has a small, 1.5-centimeter right ovarian cyst. Although that cyst was characterized as "benign," it nevertheless is present. Again, the AOJ appears to have conflated the issue with in-service occurrence/relation with that of entitlement to a compensable rating for symptoms (or the lack thereof) that impose functional limitation. See Amberman, 570 F.3d at 1381. Because the issue of the uterina fibroids have been service connected, the Board likewise finds that service connection for an ovarian cyst likewise is warranted. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). REASONS FOR REMAND At the hearing, the Veteran testified that she has received treatment at Wilford Hall Medical Center, Ambulatory Surgical Center, Brooke Army Medical Center, Gateway Bulverde Clinic, North Central Federal Clinic; she also testified that she received private treatment for neurological conditions, chiropractic treatment, acupuncture, and that she attended Tricare facilities. Oct. 27, 2021, Hr'g Tr. (Tr.) at 4, 5, 9, 26. Records from the JB Military Treatment Facility in San Antonio, Texas, were added to the claims file in June 2017. Independent research verifies that this facility is synonymous with the Brooke Army Medical Center. See https://www.jbsanantoniohousing.com/base-directory/hospital-and-medical-treatment-facilities. The North Central Federal Clinic is a VA medical center (VAMC), and those records also are within the claims file. There are, however, no other records from the list identified above, nor are there any attempts to obtain these records, associated within the claims file. With such a wealth of identified records absent from the claims file, the Board cannot proceed with adjudication until those records are obtained. See 38 C.F.R. § 3.159(c)(1)(3). Therefore, remand is required for all claims. Additional reasons for remand as to specific issues will be delineated below. 3. Entitlement to service connection for a lung disability is remanded. The Veteran's respiratory examination shows that she has no diagnosis. In the same report, however, the examiner also notes that the Veteran underwent a February 2006 chest imaging study. That imaging revealed a left pleural lesion with pleural thickening. At the end of the report, the examiner noted that service treatment records (STRs) "do not support a chronic or ongoing condition of pulmonary nodules or pulmonary condition. Normal CT scan of chest 2/8/06." Remand is required because the examiner does not explain why the Veteran's left pleural lesion with pleural thickening does not constitute a current disability, and the Board further is left wondering how such imaging results can constitute a "Normal CT scan." Additionally, this examination came six years after the noted, previous imaging studies. Without the appropriate updated tests, how can the examiner determine that the February 2006 results are accurate of the Veteran's current condition. Because the examiner does not answer these questions, remand is required to provide the Veteran with an updated examination and opinion. See 38 C.F.R. § 20.904(a). 4. Entitlement to service connection for a liver disability is remanded. The Veteran also was provided an examination for her liver. The examiner diagnosed her with "OTHER CONGENITAL ANOMALIES OF GALLBLADDER, BILE DUCTS, AND LIVER." Specifically, she was diagnosed with "Focal Nodular Hyperplasia of [the] Liver," which was noted as a "Congenital AbnormalityNot incurred in or worsened beyond natural progression by military service. No Functional limitation." This opinion has triggered the need to analyze this issue as a congenital defect/disease. VA's Office of General Counsel has distinguished between congenital or developmental defects (for which service connection is precluded by regulation) and congenital or hereditary diseases (for which service connection may be granted if the disease initially manifested in or was aggravated by service). See VAOPGCPREC 82-90 (July 18, 1990), VAOPGCPREC 67-90 (July 18, 1990). A defect differs from a disease in that a defect is "more or less stationary in nature," while a disease is "capable of improving or deteriorating." See VAOPGCPREC 82-90 at ¶. 2. "Congenital or developmental defects" automatically rebut the presumption of soundness and, therefore, are considered to have preexisted service. 38 C.F.R. §§ 3.303 (c), 4.9. Defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90. Service connection is generally precluded by regulation for such "defects," because they are not "diseases" or "injuries" within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; see also Terry v. Principi, 340 F.3d 1378, 138384 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease- or injury-related defect to which the presumption of soundness can apply"). A congenital defect, however, can still be subject to a superimposed disease or injury. VAOPGCPREC 82-90. If such superimposed disease or injury does occur, service connection may be warranted for the resulting disability. Id. If a Veteran suffers from a congenital disease, as opposed to a defect, VA simply cannot assume that, because of its congenital nature, the disease must have preexisted service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin v. Shinseki, 22 Vet. App. 390, 39697 (2009). If the presumption of soundness at entrance attaches, then VA must show by clear and unmistakable evidence that the congenital disease preexisted service. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). VA may not rely on a regulation as a substitute for the requirement that it rely on independent medical evidence. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Thus, service connection may be granted for congenital hereditary diseases which either first manifest themselves during service or which preexist service and progressed at an abnormally high rate during service. See VAOPGCPREC 67-90; 55 Fed. Reg. 43, 253 (1990). In short, service connection is available for congenital diseases (but not defects) that are aggravated in service. Quirin, 22 Vet. App. at 394; Monroe, 4 Vet. App. at 515. In cases where the appellant seeks service connection for a congenital condition, the Board must indicate whether the condition is a disease or defect and discuss the presumption of soundness. Quirin, 22 Vet. App. at 394-97. It follows that, in such cases where a congenital condition is at issue, a VA medical opinion may be needed to determine whether the condition is a disease or defect, whether the presumption of soundness has been rebutted and, if so, whether there was aggravation during service. Id. at 395. The examiner has characterized the Veteran's liver condition as a congenital anomaly, but that does not answer whether it is a defect or disease. Furthermore, the nexus statement providedthat the condition was not caused or aggravated by servicecontains no supporting rationale and, therefore, cannot be considered adequate for adjudication purposes. As just discussed, the types of presumptions applied and potential benefits awarded change based on the characterization of the congenital condition. Thus, remand is required to determine whether the Veteran's liver condition is a congenital defect or disease. See 38 C.F.R. § 20.904(a). 5. Entitlement to service connection for a cervical spine disability is remanded. For this issue, the Veteran argues that she began experiencing neck spasms during 1996 due to several prior falls. Tr. at 4. The February 2012 VA examiner diagnosed the Veteran with a neck sprain (since October 2007) and spasmodic torticollis (since September 2008). At the end of that report, however, as it pertains to the neck sprain, the examiner stated that "[t]here is no objective evidence of a cervical spine condition. Normal cervical spine X-ray. There are no objective findings consistent with a chronic or ongoing cervical spine condition." With respect to the spasmodic torticollis, the report states "[r]esolved. No functional limitations. Service Treatment Medical Record documentation does not support a chronic or ongoing condition." The report also states the following: "The Veteran has claimed cervicalgia. Cervicalgia is not a medical diagnosis. Service Treatment Medical Record documentation does not support a chronic or ongoing condition." Remand is required for several reasons. First, the STRs document a diagnosis of cervicalgia, and the examiner fails to articulate why this is not a bona fide diagnosis. Second, the STRs also document continued treatment for neck pains/spasms, and post-service VAMC records verify that, since at least 2019, the Veteran is followed at Tricare for, among other things, cervical/lumbar degenerative disc disease. Thus, an updated examination and examination and opinion is required to determine if the Veteran's in-service injuries are related to her current diagnosis. See 38 C.F.R. § 20.904(a). 6. Entitlement to service connection for a bilateral knee disability is remanded. The Veteran argues that the general rigors of service have caused her bilateral knee problems; she endorses using braces during service and being diagnosed with a left knee disability during service. Tr. at 8. The February 2012 VA knee examination noted that the Veteran then did not have a bilateral knee disability. Post-service VAMC records note that the Veteran has complained of chronic bilateral knee pain. There are also several entries noting internal derangement of the knee, but the notes fail to specify which knee suffers derangement, if not bilaterally. Thus, the Board finds that a new examination and opinion is warranted. See 38 C.F.R. § 20.904(a). The matters are REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Obtain all identified records from military facilities, including, but not limited to, Wilford Hall Medical Center, Ambulatory Surgical Center, and the Gateway Bulverde Clinic. 3. Send to the Veteran the necessary forms to identify any private treatment she has received, including, but not limited to, chiropractic, acupuncture, and neurology records, for any of her claimed conditions and afford her the opportunity to complete and submit those forms. VA also must send the Veteran forms necessary to authorize VA to obtain these records on her behalf. If the Veteran identifies any records, then make reasonable attempts to obtain them. Such attempts must be documented in the claims file. 4. If, after reasonable attempts have been made, any identified records cannot be obtained, then notify the Veteran as such in accordance with 38 C.F.R. § 3.159(e). 5. Schedule the Veteran for an examination. The examiner shall answer the following: (a.) Does the Veteran have a lung disability, to include left pleural lesion with pleural thickening? (b.) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's lung disability, if any, occurred in, or is the result of, her period of active duty service? 6. Schedule the Veteran for an examination. The examiner shall answer the following: (a.) Does the Veteran have a cervical spine disability? (b.) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's cervical spine disability, if any, occurred in, or is the result of, her period of active duty service, to include in-service complaints of neck pain and a diagnosis of cervicalgia? 7. Schedule the Veteran for an examination. The examiner shall answer the following: (a.) Does the Veteran have a bilateral knee disability? (b.) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's cervical spine disability, if any, occurred in, or is the result of, her period of active duty service, to include the general rigors of service? 8. Obtain an addendum opinion regarding the Veteran's claimed liver disability. The addendum shall answer the following: (a.) Is the Veteran's liver disability a congenital defect or disease? In answering this question, the examiner should consider that, for VA purposes, a congenital defect is defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." A disease is defined as a condition that is "capable of improving or deteriorating." (b.) If the Veteran's condition is deemed a congenital defect, does the Veteran have a superimposed disease or injury of the liver? (c.) If the Veteran's condition is deemed a congenital disease, has the Veteran's period of active duty aggravated beyond natural progression that congenital disease? Note: The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale supporting the examiner's opinions must be provided. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 9. Conduct any other development deemed necessary and then readjudicate the Veteran's claims. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.