Citation Nr: 18123954
Decision Date: 08/07/18	Archive Date: 08/03/18

DOCKET NO. 13-33 585
DATE:	August 7, 2018
ORDER
Entitlement to service connection for a sinus disability to include sinusitis and/or allergic rhinitis is denied.
Entitlement to service connection for obstructive sleep apnea to include as secondary to a sinus disability is denied.
Entitlement to service connection for fibroids with a resulting hysterectomy is denied.
Entitlement to an initial compensable disability evaluation for service-connected endometriosis (claimed as infertility) is denied.
Entitlement to a temporary total evaluation of 100 percent for hysterectomy surgery is denied.
FINDINGS OF FACT
1. The preponderance of the evidence is against finding that the Veteran has a sinus disability to include sinusitis and/or allergic rhinitis due to a disease or injury in service, to include a specific in-service event, injury, or disease.
2. The preponderance of the evidence is against finding that the Veteran has obstructive sleep apnea due to a disease or injury in service, to include specific in-service event, injury, or disease, or as secondary to a sinus disability.
3. The Veteran’s hysterectomy for fibroids is neither proximately due to nor aggravated beyond its natural progression by her service-connected endometriosis, and is not otherwise related to an in-service injury, event, or disease.
4. For the entire period on appeal, there is no evidence that the Veteran’s endometriosis has resulted in pelvic pain or other symptoms that requires continuous treatment for control.
5. The July 2010 hysterectomy surgery is for a nonservice-connected disability.
CONCLUSIONS OF LAW
1. The criteria for service connection for a sinus disability to include sinusitis and/or allergic rhinitis have not been met.  38 U.S.C. §§ 1110,1131, 5107; 38 C.F.R. §§ 3.102, 3.303.
2.  The criteria for service connection for obstructive sleep apnea to include as secondary to a sinus disability have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.
3.  The criteria for service connection for fibroids with a resulting hysterectomy have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.
4. The criteria for an initial compensable disability evaluation for service-connected endometriosis (claimed as infertility) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.116, Diagnostic Code 7629.  
5. The criteria for a temporary total evaluation of 100 percent based on the need for convalescence following hysterectomy surgery in July 2010 have not been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.30.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from October 1985 to April 1986 and from July 1987 to May 1997. 
These matters initially came before the Board of Veterans’ Appeals (Board) on appeal from January 2011 (fibroids), April 2012 (sinus disability and obstructive sleep apnea, and July 2014 (endometriosis) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).
In May 2014 and April 2016, the Board remanded the case for additional development.  As the requested development has been completed, no further action is necessary to comply with the Board’s remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).
Service Connection
Generally, to establish service connection, a claimant must show: (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, the so-called “nexus” requirement.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected.  38 C.F.R. § 3.310.


1. Entitlement to service connection for a sinus disability.
The Veteran contends that that she has sinusitis that resulted from service.  Treatment records indicate she has been treated for sinusitis at least since April 2012.  Records from the VA Medical Center (VAMC) also indicate treatment for allergic rhinitis.  Therefore, the Board has expanded her claim to service connection for any sinus disability raised by the record.  Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).
The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.
The Board concludes that, while the Veteran has a current diagnosis of both sinusitis and allergic rhinitis and evidence shows that in-service treatment for sinus symptoms occurred, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of sinusitis or allergic rhinitis began during service or is otherwise related to an in-service injury, event, or disease.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d).
VAMC treatment records show the Veteran was not diagnosed with allergic rhinitis until October 2009 and private treatment records do not show the Veteran was not diagnosed with sinusitis until April 2012 years after her separation from service.  While the Veteran is competent to report having experienced symptoms of nasal congestion, sinus pressure, and possibly intermittent headaches since service, she is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of sinusitis or allergic rhinitis. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing.  Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  
During service, the Veteran sought treatment in May 1992 (sinusitis), February 1995 (rhinitis), March 1996 (sinusitis) and January 1997 (sinusitis). There is possibly one more occasion of treatment for sinus symptoms but the note is not dated. The separation examination did not report any history or presence of chronic sinus symptoms.  
The June 2014 VA examiner concluded that the Veteran’s allergic rhinitis is less likely as not related to an in-service injury, event, or disease, including in-service treatment for rhinitis.  The Veteran did not seek any treatment for a sinus problem until she sought treatment at the VAMC, with continuous care thereafter demonstrating that 13 years had elapsed since service, and all service events are considered transient conditions with years separating the service episodes, which were described with different symptomology; each treated appropriately and resolved.  Therefore, the allergic rhinitis after service is less likely as not related to the Veteran’s active duty service treatment of rhinitis during service.  
The Board notes that at the 2014 VA examination, the Veteran’s sinuses were clear on an X-ray study and her examination was normal. 
The February 2018 VA examiner concluded that the Veteran’s sinusitis is less likely as not related to an in-service injury, event, or disease, including in- service treatment on more than one occasion for sinus symptoms. The examiner noted the post-service treatment for sinus symptoms including a July 2011 X-ray that demonstrated a nearly complete opacification of the left maxillary sinus which her providers determined was a sinus infection.  By September 2011, the Veteran reported she did not have any sinus symptoms.  As noted, in February 2014, her sinuses were clear on X-ray.  According to medical literature referred to by the VA examiner, while the period of symptoms varies, patients with either a viral or bacterial infection completely resolve and the patient improves. The Board interprets the VA examiner’s report as concluding the in-service treatment involved viral or bacterial infections. Thus, the medical evidence demonstrates that the Veteran has sinusitis treatment for the 2011-2014 period, but it is less likely than not related to the in-service treatment because all service episodes had resolved by separation without residuals.  
Taken together, the June 2014 and the February 2018 VA examiners’ opinions establish that the Veteran’s sinus disabilities are not at least as likely as not related to an in-service injury, event, or disease, including episodes of sinus symptoms in May 1992, February 1995, March 1996 and January 1997. The examiners’ combined opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).
While the Veteran believes her sinus disabilities are related to an in-service injury, event, or disease, including the in-service treatment, as noted above, she is not competent to provide a nexus opinion in this case as the issue is medically complex.  Jandreau, 492 F.3d at 1377 n.4.  Consequently, the Board gives more probative weight to the opinions of the VA examiners.
Thus, the preponderance of the evidence is against a finding that the Veteran has a sinus disability that was caused or aggravated by service.  The claim for service connection for a sinus disability, either sinusitis or allergic rhinitis is denied
2. Entitlement to service connection for obstructive sleep apnea to include as secondary to a sinus disability
The Veteran asserts that she has obstructive sleep apnea (also noted in the records as obstructive sleep apnea hypopnea syndrome) that resulted from service.  She also asserts that her obstructive sleep apnea is caused or aggravated by her sinus disabilities.  She has submitted evidence, including statements from herself and her husband (who was married to her while she was in service), that during service, she snored in her sleep and on occasion, she would stop breathing and her husband would have to nudge her to resume breathing.  
The Board first turns to the question of whether the Veteran has obstructive sleep apnea that is proximately due to or the result of, or has been aggravated beyond its natural progress by her sinus disabilities.  As just discussed above, neither sinus disability is a service-connected disability.  She is service connected for hidradenitis suppurativa, endometriosis, and residuals from a caesarean section.  The Veteran does not contend, nor is there any medical evidence to suggest these service connected disabilities caused or aggravated her obstructive sleep apnea beyond its natural progression.  Therefore, the Veteran is not entitled to service connection for obstructive sleep apnea as secondarily caused by a service connected disability as a matter of law.  38 C.F.R. § 3.310 (a).
Service connection may also be granted on a direct basis, but the preponderance of the evidence is also against finding that the Veteran’s obstructive sleep apnea is related to an in-service injury, event, or disease.  38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d).  
The Veteran and her husband are competent to report her snoring and that she stopped breathing while she was in active service and the reports are credible and entitled to probative weight.  Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). 
However, the July 2014 VA examiner determined that the Veteran’s obstructive sleep apnea is not at least as likely as not related to an in-service injury, event, or disease, including any lay observations of snoring and interrupted breathing.  As rationale, the VA examiner cited medical studies establishing the predominate proximate cause of obstructive sleep apnea as a developmentally narrow oropharyngeal airway, often superimposed elevation of BMI (e.g., obesity), and/or aging, with obesity being the strongest risk factor.  In the Veteran’s case, the VA examiner conclude the Veteran’s obstructive sleep apnea is most likely due to developmentally narrow oropharyngeal airway with superimposed natural aging and elevation of BMI and less likely than not caused by or related to military service.  To the extent the Veteran contends she had a weight problem in service, which lead to obstructive sleep apnea, VA has determined that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore may not be service connected on a direct basis.  See VAOPGCPREC 1-2017.
While the Veteran believes her obstructive sleep apnea is related to an in-service injury, event, or disease, including observed events such as snoring or she stopped breathing while sleeping, she is not competent to provide a nexus opinion in this case.  As noted above, she is not competent to provide a nexus opinion in this case as the issue is medically complex.  Jandreau, 492 F.3d at 1377 n.4.  As the VA examiner observed, lay statements of reported historically witnessed apneic events cannot be compared to the complex testing required to formulate an apnea/hypopnea index necessary for diagnosing obstructive sleep apnea syndrome.
Thus, the preponderance of the evidence is against a finding that the Veteran has obstructive sleep apnea that was caused or aggravated by service or a service-connected disability.  The claim for service connection is denied
3. Entitlement to service connection for fibroids with a resulting hysterectomy.
During service, the Veteran was treated for symptoms such as heavy menstrual bleeding and abdominal cramps, such as in August and November 1987.  No symptoms or gynecological problems were noted in the separation examination in May 1997.  In January 1998, a hysterosalpingogram, a type of imaging study, suggested she might have small submucosal fibroids.  In March 1998, the Veteran underwent laparoscopic surgery.  The surgeon specifically stated there were no fibroids found.  Instead, she had findings compatible with adenomyosis as well as endometriosis.  The endometriosis was cauterized.  
In June 2009, the Veteran sought treatment for a history of heavy bleeding and some clots although there was no menstrual cramping. The physician found an enlarged uterus upon examination and an ultrasound revealed multiple fibroids (which are also referred to as leiomyoma).  The Veteran first received medication which was unsuccessful in shrinking the fibroids.  She underwent a hysterectomy in July 2010.  
The Veteran asserts that she has fibroids, which is due to service where she experienced symptoms such as heavy menstrual bleeding and abdominal cramps.   She has also claimed service connection for a hysterectomy related to the heavy menstrual bleeding and abdominal cramps.  The Board notes she is service connected for another gynecological condition, endometriosis.
The question for the Board is whether the Veteran’s fibroids, which lead to the 2010 hysterectomy, is at least as likely as not related to an in-service injury, event, or disease.
The Board concludes that the preponderance of the evidence weighs against finding that the Veteran’s fibroids and 2010 hysterectomy resulted from a disability that began during service or is otherwise related to an in-service injury, event, or disease.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d).
Treatment records show the Veteran was not diagnosed with fibroids until 2009 and the hysterectomy occurred in 2010, years after her separation from service.  While the Veteran is competent to report having experienced symptoms of heavy menstrual bleeding or cramping during or since service, she is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of fibroids.  As this case demonstrates, the issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing.  Jandreau, supra.  Her caregivers were suspicious of fibroids based upon the 1998 ultrasound but surgery shortly afterwards determined that the problem was endometriosis, and eliminated fibroids as a cause of the symptoms.  In 2009-2010, more testing was required to determine the problem this time was fibroids, not endometriosis, and treatment required the 2010 hysterectomy.   
An April 2012 VA examiner concluded that the Veteran’s hysterectomy due to fibroids is not at least as likely as not related to an in-service injury, event, or disease, including treatment and complaints of heavy menstrual bleeding and abdominal cramping.  The VA examiner agreed the symptoms the Veteran experienced in service resulted in the 1998 endometriosis diagnosis and therefore the endometriosis was a result of or related to the heavy menstrual bleeding she experienced in service.  As to the fibroids, the 1998 operative report specifically mentioned the absence of fibroids (“no visible fibroids were seen and a mottled appearance compatible with adenomyosis was identified.”)  The final diagnosis was endometriosis and adenomyosis.  In the VA examiner’s opinion, the laparoscopy ruled out or eliminated the suspicion of possible small fibroids indicated during the hysterosalpingogram two months earlier.  It was 11 years later when the Veteran was found to have an enlarged uterus to 18-20 weeks in size (comparable to a four-month size pregnant uterus) due to fibroids and thereafter the hysterectomy occurred.   
In a July 2014 VA opinion, the VA examiner concluded the hysterectomy was not due to or related to endometriosis.  As noted, she was treated for endometriosis in 1998.  Subsequently, the pathology report from an endometrial biopsy in 2009 showed no evidence of endometriosis.  A private oby/gyn in 2009 and then the VA oby/gyn in 2010 recommended a hysterectomy because uterine fibroids were responsible for menorrhagia.  Therefore, the hysterectomy was due to the fibroids, and not caused by, the result of, or aggravated by the Veteran’s service connected endometriosis. 
Taken together, the April 2012 and July 2014 VA examiners’ opinions establish that the Veteran’s fibroids and hysterectomy is not at least as likely as not related to an in-service injury, event, or disease, including heavy menstrual bleeding and abdominal cramping or caused or aggravated by the Veteran’s service connected endometriosis.  The examiners’ combined opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data.  Nieves-Rodriguez, 22 Vet. App. at 304.
While the Veteran believes her hysterectomy is related to service because she had symptoms in service such as heavy menstrual bleeding and the same symptoms resulted in the 2010 hysterectomy, she is not competent to provide a nexus opinion in this case.  This issue is also medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing.  Jandreau, 492 F.3d at 1377 n.4.  The VA examiners determined that two different conditions, endometriosis and fibroids caused the same symptoms but at different times.  There are no contrary medical opinions.  Consequently, the Board gives more probative weight to the VA examiners.
Thus, the preponderance of the evidence is against a finding that the Veteran had fibroids with a subsequent hysterectomy that was caused or aggravated by service or a service-connected disability.  The claim for service connection is denied.
Increased Rating Claim
4. Entitlement to a compensable disability evaluation for service-connected endometriosis (claimed as infertility).
In a September 2013 rating decision, the Veteran was granted service connection for endometriosis as noncompensable, effective the date she filed the claim in October 2009.  The Veteran asserts the disability should be awarded a compensable evaluation based upon the heavy menstrual bleeding noted in her medical records in June 2009.  She further asserts that an attempt was made to control the bleeding with medication but it was unsuccessful and as a result, she had a hysterectomy in 2010.    
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  
The Veteran’s endometriosis is evaluated under Diagnostic Code 7629.  To warrant a compensable rating (10 percent) for endometriosis, the evidence would have to show endometriosis with pelvic pain or heavy or irregular bleeding requiring continuous treatment for control.  A 30 percent rating is assigned for endometriosis with pelvic pain or heavy or irregular bleeding not controlled by treatment.  A maximum 50 percent rating is assigned for endometriosis with lesions involving bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment and bowl or bladder symptoms.  38 C.F.R. § 4.117.
With respect to granting a compensable rating under Diagnostic Code 7629, the evidence of record does not reflect that the Veteran experiences pelvic pain or heavy or irregular bleeding as due to endometriosis, whether controlled or not controlled by treatment.  In an April 2012 VA examination, it was noted that the Veteran underwent surgery for endometriosis in 1998.  The Veteran had a hysterectomy for fibroids in 2010.  In the most recent gynecological examination by her primary care provider in September 2011, the findings were normal and the VA examiner did not note any abnormalities in the April 2012 examination.   In July 2014, the Veteran reported that since the 2010 hysterectomy she has not had any cramping or heavy bleeding.  The pathology report from an endometrial biopsy in 2009 showed no evidence of endometriosis.  The examiner stated the Veteran currently did not have any findings, signs or symptoms due to endometriosis and it presented no functional limitations.  
None of the other medical evidence reflects that, since the effective date of service connection for endometriosis in October 2009, she has had heavy or irregular bleeding or abdominal pain attributable to endometriosis as opposed to another condition.  As discussed above, while she experienced heavy or irregular bleeding in the 2009-2011 time frame, the service connected endometriosis was not the cause of the symptoms.  Instead, it was attributed to another diagnosis, fibroids, which is not service connected.  Stated another way, although the Veteran had a variety of symptoms in the past, the VA gynecological examinations show no such current symptoms or residuals is attributable to endometriosis, and it was expressly noted in the VA examination reports that she does not require medication.  Further, the most recent VA gynecological examination showed no such current symptoms or residuals.  In addition, the evidence of record does not indicate lesions involving bowel confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel symptoms to warrant a 50 percent disability rating.
The Veteran is competent to attest to things she experiences through her senses, such as pain or heavy menstrual bleeding.   See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  In this case the Veteran has stated her disability results in pain (abdominal cramping), and heavy menstrual bleeding.  Since the 1998 endometriosis surgery, there is no medical evidence attributing abdominal cramping and heavy menstrual bleeding to endometriosis.  Instead, her medical providers determined the symptoms were caused by fibroids which resulted in the 2010 hysterectomy. As the Veteran has admitted, she is not shown to possess any medical expertise and her opinion as to whether the abdominal cramping or menstrual bleeding are attributable to endometriosis or another etiology is not competent evidence.  Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to a current disability requires medical expertise to determine.  See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (“Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.”).  In any event, the Board finds the medical opinions more probative than the Veteran’s lay statements as the opinions were offered by a medical professional after examination of the Veteran and consideration of the history of the disability including the Veteran’s reports of heavy menstrual bleeding and cramping, and as the VA examiner’s opinions are supported by a clear rationale.  
As the preponderance of the evidence is against a finding that the Veteran’s endometriosis disability more nearly approximates the criteria for a compensable rating, a higher rating is not warranted.  38 C.F.R. §§ 4.3, 4.
5. Entitlement to a temporary total evaluation of 100 percent for hysterectomy surgery.
The Veteran seeks a temporary total disability rating based on the need for convalescence following her surgery in July 2010 for the hysterectomy. 
A total disability rating will be assigned without regard to other provisions of the rating schedule when it is established that treatment of a service-connected disability resulted in surgery necessitating at least one month of convalescence. 38 C.F.R. § 4.30. 
As determined above, the Veteran’s hysterectomy is not a service-connected disability or resulted from one. Therefore, the Veteran is not entitled to a temporary total disability rating based on the need for convalescence following her July 2010 hysterectomy surgery as a matter of law.

 
T. Reynolds
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Russell Veldenz, Counsel