Citation Nr: 1340792 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 11-28 024 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a gynecological disorder, to include dysfunctional uterine bleeding and endometriosis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had active duty service from October 2001 to October 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (RO). FINDINGS OF FACT 1. Service connection for status post dysfunctional uterine bleeding was denied by a December 2005 rating decision. The Veteran did not perfect an appeal of that rating decision, and it is final. 2. Evidence associated with the claims file since the unappealed December 2005 rating decision is not cumulative or redundant of the evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a gynecological disorder, to include dysfunctional uterine bleeding and endometriosis, and raises a reasonable possibility of substantiating the claim. 3. The Veteran's currently diagnosed chronic dysfunctional uterine bleeding, with dysmenorrheal and dyspareunia, is related to her active duty service. CONCLUSIONS OF LAW 1. New and material evidence has been submitted since the December 2005 rating decision, and the Veteran's claim for entitlement to service connection for a gynecological disorder, to include dysfunctional uterine bleeding and endometriosis is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). 2. Chronic dysfunctional uterine bleeding, with dysmenorrheal and dyspareunia, was incurred in active service. 38 U.S.C.A. § 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the Veteran's claim to reopen the issue of entitlement to service connection for a gynecological disorder, to include dysfunctional uterine bleeding and endometriosis, or her claim of entitlement to service connection for a gynecological disorder, to include dysfunctional uterine bleeding and endometriosis. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2013). This is so because the Board is taking action favorable to the Veteran by granting the claim to reopen, as well as granting the claim of entitlement to service connection for chronic dysfunctional uterine bleeding, with dysmenorrheal and dyspareunia. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). New and Material Evidence to Reopen Claim The Veteran contends that she has submitted new and material evidence sufficient to reopen her claim of entitlement to service connection for a gynecological disorder, to include dysfunctional uterine bleeding and endometriosis. In a December 2005 rating decision, the RO denied service connection for status post dysfunctional uterine bleeding because although there was evidence of in-service treatment for pelvic pain, and irregular periods with episodes of bleeding, there was no current evidence of permanent residual or chronic gynecological disability. The Veteran did not appeal the December 2005 rating decision, and it is final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104 (2013). Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. Because the December 2005 rating decision is the last final disallowance with regard to the Veteran's claim, the Board must review all of the evidence submitted since that action to determine whether the Veteran's claim for service connection should be reopened and readjudicated on a de novo basis. Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). If new and material evidence is presented with respect to a claim which has been disallowed, the Board shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. 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. "New" evidence means existing evidence not previously submitted to VA. "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. See 38 C.F.R. § 3.156 (a). In October 2009, the Veteran filed the present claim to reopen the issue of entitlement to service connection for a gynecological disorder, to include dysfunctional uterine bleeding and endometriosis. In a July 2010 rating decision, the RO denied the Veteran's claim to reopen, finding that the current evidence of record did not show a confirmed diagnosis of a gynecological disorder that caused the Veteran's symptoms of dysfunctional uterine bleeding. In October 2010, the Veteran perfected her appeal. Although the RO determined that new and material evidence was not presented to reopen the claim of entitlement to service connection for a gynecological disorder, this decision is not binding on the Board. Regardless of what the RO has done in this case, "the Board does not have jurisdiction to consider a claim which it previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1383 (Fed. Cir. 1996); 38 U.S.C.A. §§ 5108, 7105. Thus, the Board must first decide whether evidence has been received that is both new and material to reopen the claim. Barnett, 83 F.3d at 1384; McGinnis v. Brown, 4 Vet. App. 239 (1993) (finding that Board reopening is unlawful when new and material evidence has not been submitted). Consequently, the Board will adjudicate the question of whether new and material evidence has been received, furnishing a complete explanation as to its reasons and bases for such a decision. Comparing the evidence received since the December 2005 rating decision to the previous evidence of record, the Board finds that the additional evidence is new and material to the issue of entitlement to service connection for a gynecological disorder. At the time of the December 2005 rating decision, the evidence of record consisted of the Veteran's service treatment records and the Veteran's statements. The Veteran's statements indicate that her symptoms of pelvic pain and irregular menstrual cycles, with episodes of bleeding, began during active service. Service treatment records include the report of a March 2001 induction physical examination, which is negative for complaints of or a diagnosis of a gynecological disorder. A November 2001 pap smear was normal. An April 2003 record notes complaints of abnormal bleeding for the previous three months; the assessment was menorrhagia. A December 2004 record notes complaints of sharp right side abdominal pain and increased vaginal discharge; the assessment was vaginitis. A February 2005 record notes complaints of vaginal symptoms, to include abdominal cramping. Records dated in April 2005 note multiple complaints of sharp, intermittent pelvic pressure and cramping for the previous year; examination revealed gynecological symptoms, to include mild dyspareunia, with assessments of pelvic pain, chronic endometriosis, vaginitis, menorrhagia, and possible cervicitis. The Veteran was provided antibiotics to treat her symptoms; however, she reported that the medication did not help. A May 2005 pelvic ultrasound was normal. A June 2005 record notes complaints of sharp pelvic pain through the vaginal area, as well as blood clots passing through the vagina for the previous year; the assessment was bacterial vaginosis. The June 2005 pre-discharge examination reported complaints of irregular menstrual cycles, with gross episodes of bleeding, passing large clots the size of a golf ball, as well as sharp pelvic pain. Pelvic examination was deferred until July; the assessment was status post dysfunctional uterine bleeding. The examiner noted that he was unable to comment on this diagnosis because the Veteran refused a pelvic examination. An August 2005 record notes the Veteran's report of pelvic pain. The report of a September 2005 separation physical examination, report of medical history, notes the Veteran's complaints of abdominal pain since the birth of her son that was diagnosed as endometriosis. Since the December 2005 rating decision, additional evidence has been received, including private treatment records, a VA examination report and opinion, and statements and testimony from the Veteran. In particular, the report of an April 2010 fee-based examination notes the Veteran's report of irregular periods, with heavy bleeding, as well as cramping for the previous five and half years. The Veteran also reported a history of endometriosis that was diagnosed during service. Upon examination and review of the claims file, the examiner diagnosed chronic dysfunctional uterine bleeding, with dysmenorrheal and dyspareunia. The examiner provided an extensive review of the Veteran's service treatment records and post-service treatment records. The examiner stated that the Veteran had a longstanding history of pelvic complaints, to include pain and dysfunctional bleeding that were apparent in the service treatment records, and had continued to the present. The examiner concluded that there was "no doubt" that these problems began during service. The Veteran's claim was denied in December 2005 because there was no evidence of a permanent residual or chronic gynecological disability that was related to the Veteran's service. The April 2010 fee-based examination and opinion indicates that the Veteran's current chronic dysfunctional uterine bleeding, with dysmenorrheal and dyspareunia, began during her active duty service. As this evidence raises a reasonable possibility of substantiating the Veteran's claim, the Board concludes that the Veteran has submitted new and material evidence sufficient to reopen her claim of entitlement to service connection for a gynecological disorder, to include dysfunctional uterine bleeding and endometriosis. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Service Connection Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran contends that her current gynecological disorder began during her active duty service. In this regard, during a December 2012 hearing before the Board, she testified that she has experienced sharp pelvic pain, bleeding, irregular menstrual cycles, and the passing blood clots since approximately 2004. She indicated that she had such symptoms prior to the vaginal birth of her son, which was in March 2004; however, she explained that such symptoms worsened subsequent to birth, to include increased cramping. She indicated that her service treatment records indicate a diagnosis of endometriosis. She stated that she sought treatment from 2004 until separation from service in October 2005 for such symptoms. She asserted that she has continued to experience similar symptoms since separation from service. She further testified that she had a required cesarean section birth of her second child, in July 2006, due to her diagnosis of endometriosis, which was also noted during the course post-service private treatment. Service treatment records include the report of a March 2001 induction physical examination, which is negative for complaints of or a diagnosis of a gynecological disorder. A November 2001 pap smear was normal. An April 2003 record notes complaints of abnormal bleeding for the previous three months; the assessment was menorrhagia. A December 2004 record reports complaints of sharp right side abdominal pain and increased vaginal discharge; the assessment was vaginitis. A February 2005 record indicates complaints of vaginal symptoms, to include abdominal cramping. Records dated in April 2005 reveal multiple complaints of sharp intermittent pelvic pressure and cramping for the previous year; examination revealed gynecological symptoms, to include mild dyspareunia, with assessments of pelvic pain, chronic endometriosis, vaginitis, menorrhagia, and possible cervicitis. The Veteran was provided antibiotics to treat her symptoms; however, she reported that the medication did not help. A May 2005 pelvic ultrasound was normal. A June 2005 record notes complaints of sharp pelvic pain through the vaginal area, as well as blood clots passing through the vagina for the previous year; the assessment was bacterial vaginosis. The June 2005 pre-discharge examination reports complaints of irregular menstrual cycles, with gross episodes of bleeding, passing large clots the size of a golf ball, as well as sharp pelvic pain. Pelvic examination was deferred until July; the assessment was status post dysfunctional uterine bleeding. The examiner reported that he was unable to comment on this diagnosed because the Veteran refused a pelvic examination. An August 2005 record notes the Veteran's report pelvic pain. The September 2005 separation physical examination, report of medical history, reveals the Veteran's complaints of abdominal pain that was diagnosed as endometriosis. Post-service records include private treatment records dated in December 2005 through January 2011, which show complaints of sharp lower abdominal pain and bleeding. A July 2006 record indicates that the Veteran was admitted to a hospital and reported a history of endometriosis; the assessments included a low-lying placenta subsequent to a cesarean section. A November 2006 record indicates an assessment of endometriosis. A November 2008 record notes a pap smear that was suggestive of vaginosis. The report of a January 2011 ultrasound notes an impression of abnormal tissues within the scar region of the Veteran's previous cesarean section. An April 2010 fee-based examination notes the Veteran's report of irregular periods with heavy bleeding, as well as cramping for the previous five and half years. The Veteran also reported a history of endometriosis that was diagnosed during service. Upon examination and review of the claims file, the examiner diagnosed chronic dysfunctional uterine bleeding with dysmenorrheal and dyspareunia. The examiner stated that the Veteran had a longstanding history of pelvic complaints, to include pain and dysfunctional bleeding that were apparent in the service treatment records, and have continued to the present day. The examiner concluded that there was "no doubt" that these problems began during service. In providing the opinion, the examiner noted an extensive review of the Veteran's service treatment records and post-service treatment records. Specifically, the examiner indicated that the Veteran's November 2001 pap smear was normal. The examiner reported that that the evidence showed menorrhagia was diagnosed in April 2003; a December 2004 record indicated an assessment of vaginitis; and the Veteran had several complaints of pelvic pain and bleeding in April 2005, and that she was given antibiotics that did not provide any relief. The examiner noted that assessments dated in April 2005 included vaginitis, menorrhagia, and possible cervicitis. The examiner further noted that the report of a May 2005 ultrasound was normal, and that the Veteran sought treatment for pelvic pain in June 2005, with an assessment of bacterial vaginosis. The examiner reported that a June 2005 pre-discharge examination indicated a diagnosis of status post dysfunctional uterine bleeding. The examiner noted the Veteran's post-service private treatment records, to include a June 2006 record, which indicated an assessment of possible bacterial vaginosis; and private records dated in July 2006, which indicated complaints of pelvic pain, to include after periods and intercourse, and assessments of a low-lying placenta and endometriosis. The examiner further took note that the records dated in 2008 indicate testing suggestive of bacterial vaginosis. The Board finds that the evidence of record supports a finding of service connection for a gynecological disorder, namely, chronic dysfunctional uterine bleeding, with dysmenorrheal and dyspareunia. A post-service fee-based examination report shows such diagnoses in April 2010. Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). The April 2010 fee-based examination and opinion report indicates current diagnoses of chronic dysfunctional uterine bleeding, with dysmenorrheal and dyspareunia. The examiner stated that he reviewed the claims file, and provided an extensive review of the Veteran's in-service history. The examiner noted the Veteran's November 2001 pap smear, which was normal. He also noted the Veteran's history of sharp pelvic pain, bleeding, irregular menstrual cycles, and passing blood clots, which is supported by treatment records dated in approximately 2004 through discharge from service. The examiner further noted that the Veteran, however, also sought treatment in April 2003 for similar complaints, prior to the birth of her son, which is consistent with the Veteran's testimony before the Board. The examiner noted the related in-service diagnoses, to include dyspareunia and endometriosis. The examiner noted the post-service private treatment records of record dated in 2006-2008, which include the Veteran's ongoing complaints of sharp pelvic pain, bleeding, irregular menstrual cycles, and passing blood clots, as well as the diagnosis of endometriosis. The examiner concluded that there was "no doubt" that the Veteran's problems began during service. The opinion is based upon an accurate assessment of the medical evidence of record. Moreover, the opinion considered the Veteran's lay statements regarding ongoing pelvic pain and bleeding since military service. The Board finds the April 2010 fee-based opinion highly probative evidence. The opinion included a rationale and discussion of the medical principles underlying the opinion, and considered the Veteran's reported medical history. Accordingly, service connection for chronic dysfunctional uterine bleeding, with dysmenorrheal and dyspareunia is warranted. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for chronic dysfunctional uterine bleeding, with dysmenorrheal and dyspareunia, is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs