Citation Nr: 1037101 Decision Date: 09/30/10 Archive Date: 10/05/10 DOCKET NO. 08-11 376 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for a thyroid disorder, and if so, whether service connection is warranted. 2. Whether new and material evidence has been received to reopen a previously denied claim for service connection for hypertension, and if so, whether service connection is warranted. 3. Entitlement to service connection for an eye disorder. 4. Entitlement to service connection for a back disorder. 5. Entitlement to service connection for a right foot disorder. 6. Entitlement to service connection for a gynecological disorder. 7. Entitlement to service connection for an abdominal disorder. 8. Entitlement to service connection for shin splints. 9. Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. M. Schaefer, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1986 to September 1986 and from February 1987 to August 1990. She also had service in the Army Reserve and Kansas National Guard from August 1990 to June 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Wichita, Kansas. The Board observes that the Veteran's psychiatric disorder claim was certified as a claim for service connection for depression only. However, the record also provides a diagnosis of bipolar disorder that may be related to a service-connected disability. When the record associates different diagnoses with the same symptoms, the nature of the Veteran's disorder is a question of fact for the Board, and once determined, the Board must address whether the Veteran's symptoms, regardless of diagnosis, are related to service. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). Accordingly, the Board has broadened the claim to include any acquired psychiatric disorder, as indicated on the title page. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The service connection issues are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a final rating decision issued in October 2004, the RO denied claims for service connection for a thyroid disorder and hypertension. 2. Evidence added to the record since the prior final denial in October 2004 is neither cumulative nor redundant of the evidence of record at that time and raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The October 2004 decision is final; new and material evidence has been received to reopen a claim of entitlement to service connection for a thyroid disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2009). 2. The October 2004 decision is final; new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Board's decision herein to grant the claims to reopen previously denied claims for service connection for a thyroid disorder and hypertension is a full grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106- 475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002)) and the implementing regulations. The Veteran contends that she suffers from a thyroid disorder and hypertension that are related to her active duty military service. Thus, she contends that service connection is warranted for these disorders. In an October 2004 rating decision, the RO denied service connection for a thyroid disorder and hypertension. Thereafter, service treatment records were received and the claims were reconsidered in a February 2005 rating decision. Another claim for service connection was received in August 2005. The first notice of disagreement (NOD) was received in December 2006 after the March 2006 rating decision. The Board notes that a claim becomes final and subject to a motion to reopen only after the period for appeal has run, and any interim submissions before finality must be considered by the VA as part of the original claim. Jennings v. Mansfield, 509 F.3d 1362 (2007). Thus, the submissions associated prior to finality of the October 2004 rating decision, as well as the February 2005 rating decision, relate back to the October 2004 rating decision. However, no NOD was received with regard to that decision. Therefore, the October 2004 rating decision is considered final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004) [(2009)]. Generally, a claim which has been denied in an unappealed or final RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). In October 2004, the Veteran's service treatment records were not available, and the Veteran submitted no treatment evidence; therefore, the only evidence in support of her claims as of October 2004 was her own statements. The claims were denied on the basis that there was no evidence of a thyroid disorder or hypertension related to military service. Thereafter, service treatment records were received, but there remained no evidence of current disability, and the claims were again denied. Since the finality of the October 2004 rating decision, duplicate copies of service treatment records have been received as well as private treatment records and treatment reports. This evidence reveals diagnoses of Grave's disease, which resulted in a thyroidectomy and hypothyroidism, as well as hypertension. Therefore, there is now evidence of a current disability with respect to these claims. Accordingly, this evidence is new, in that it is neither cumulative nor redundant of the evidence of record at the time of the original adjudication and material, in that it raises a reasonable possibility of substantiating the Veteran's claims by addressing an evidentiary deficiency present at that time. Therefore, the claims to reopen the previously denied claims seeking service connection for a thyroid disorder and hypertension are granted. ORDER New and material evidence having been received, the claim to reopen the previously denied claim seeking service connection for a thyroid disorder is granted. New and material evidence having been received, the claim to reopen the previously denied claim seeking service connection for hypertension is granted. REMAND With regard to the service connection claims, the Board determines that a remand is necessary. First, the Board observes that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA). Although the SSA award letter and decision are in the claims file, the records related to her application for those benefits are not. When VA has notice prior to the issuance of a final decision of the possible existence of certain records and their relevance, the Board must seek to obtain those records before proceeding with the appeal. Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992); see also Quartuccio v. Principi, 16 Vet. App. 183, 187-188 (2002); Baker v. West, 11 Vet. App. 163, 169 (1998). Additionally, the SSA decision dated in July 2009 references VA treatment records. There are no VA treatment records in the claims file, and the Veteran has not reported that she receives treatment at a VA facility. Nevertheless, the SSA decision indicates that there are likely relevant VA treatment records outstanding. The record reflects that the Veteran has resided in Wichita throughout the appeal period; thus, the Board presumes that the VA facility in question is the Wichita VA medical center (VAMC). Thus, all VA treatment records from the Wichita VAMC dated from her last month on active duty, August 1990, onward should be obtained. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). Therefore, further adjudication of the service connection claims must be delayed until these outstanding SSA and VA records are obtained. Second, the Board notes that VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159; See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board observes that the Veteran had a diagnosis of pes planus in service, but that no defect was documented on enlistment. As pes planus is, to the Board's knowledge, a chronic disorder, the Board determines that a VA examination to obtain an opinion as to the existence and etiology of a right foot disorder is warranted. Additionally, a review of the claims file reveals a current diagnosis of hypertension and several elevated blood pressure readings during service. The Board determines that this evidence is sufficient to warrant a VA examination to ascertain the etiology of the Veteran's hypertension. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. Request all records relevant to the Veteran's application and award of SSA disability benefits. All requests and responses, positive and negative, should be associated with the claims file. 2. Request any VA treatment records for the Veteran from the Wichita VAMC dated from August 1990 onward. All requests and responses, positive and negative, should be associated with the claims file. 3. Schedule the Veteran for a VA podiatry examination in order to ascertain the etiology of her claimed right foot disorder. The claims file should be made available for review, and the examination report should reflect that such review occurred. Upon a review of the record and examination of the Veteran, the examiner should respond to the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran's claimed right foot disorder is causally or etiologically related to her military service? A rationale for any opinion advanced should be provided. The examiner should also state what sources were consulted in forming the opinion. 4. Schedule the Veteran for a VA examination in order to ascertain the etiology of her hypertension. The claims file should be made available for review, and the examination report should reflect that such review occurred. Upon a review of the record and examination of the Veteran, the examiner should respond to the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran's hypertension is causally or etiologically related to her military service? A rationale for any opinion advanced should be provided. The examiner should also state what sources were consulted in forming the opinion. 5. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's service connection claims should be readjudicated. If any claim remains denied, the Veteran and her representative should be issued another supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs