Citation Nr: 1756777 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 12-27 325A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a disability manifested by miscarriages and pelvic pain, to include as secondary to hysterectomy with right salpingectomy. 2. Entitlement to service connection for a bilateral foot disability, to include bilateral plantar fasciitis and heel spur syndrome with swelling of the feet and ankles. 3. Entitlement to an initial rating in excess of 10 percent for migraine headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel INTRODUCTION The appellant served on active duty in the Army from October 1976 to July 1978 and from January 1980 to September 1998. She is the recipient of the Meritorious Service Medal on four occasions, the Army Commendation Medal on two occasions, the Army Achievement Medal on three occasions, and the Army Good Conduct Medal on seven occasions. This matter comes before the Board of Veterans' Appeals (Board) from August 2010 and April 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Jurisdiction was subsequently transferred to the RO in St. Paul, Minnesota. The appellant withdrew her request for a travel Board hearing in correspondence received in August 2014. The Board notes that the issues on appeal originally included entitlement to service connection for narcolepsy. Before the matter was certified to the Board, however, in a February 2016 rating decision, the RO granted service connection for narcolepsy and assigned an initial 10 percent rating, effective January 27, 2101. The award of service connection for narcolepsy constitutes a full award of the benefit sought on appeal with respect to that claim. Absent any indication that the appellant has initiated an appeal with the downstream elements of initial rating or effective date, those matters are not before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). The issue of entitlement to an initial rating in excess of 10 percent for migraine headaches is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a May 1999 rating decision, the RO denied the appellant's claim of service connection for miscarriages, pelvic pain, and low blood pressure because there was no evidence she had a disability for which compensation could be established. The appellant was duly notified of the RO's determination and her appellate rights but she did not appeal within the applicable time period, nor was new and material evidence received in the year following notification of the decision. 2. Evidence received since the final May 1999 rating decision denying service connection for miscarriages, pelvic pain, and low blood pressure relates to an unestablished fact necessary to substantiate the claim and, presuming its credibility, raises a reasonable possibility of substantiating the service connection claim for miscarriages and pelvic pain, to include as secondary to hysterectomy with right salpingectomy. 3. The appellant does not have a current disability manifested by miscarriages or pelvic pain. 4. A chronic bilateral foot disability was not present during the appellant's active service or manifested to a compensable degree within one year of service separation, and the most probative evidence establishes that her current bilateral foot disability is not otherwise casually related to her active service or any incident therein, nor is it causally related to or aggravated by any service-connected disability. CONCLUSIONS OF LAW 1. The May 1999 rating decision denying service connection for miscarriages, pelvic pain, and low blood pressure is final. 38 U.S.C. § 7105(c) (1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1998). 2. New and material evidence has been received to warrant reopening of the previously denied claim of service connection for miscarriages and pelvic pain, to include as secondary to hysterectomy with right salpingectomy. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for entitlement to service connection for a disability manifested by miscarriages and pelvic pain, to include as secondary to hysterectomy with right salpingectomy, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 4. The criteria for entitlement to service connection for a bilateral foot disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) Neither the appellant nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Applicable Law A. Standard of Proof The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran." See Gilbert, 1 Vet. App. at 54. B. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims such as this one, filed on or after August 29, 2001, 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. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118. C. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the "active military, naval, or air service." 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain specifically enumerated chronic diseases, such as arthritis, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). III. Analysis A. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for miscarriages and pelvic pain, to include as secondary to hysterectomy with right salpingectomy. In a May 1999 rating decision, the RO denied service connection for miscarriages, pelvic pain, and low blood pressure because the evidence failed to show a disability for which compensation could be established. The appellant was informed of this decision and her appellate rights in a May 1999 letter, but she did not appeal within the applicable time period, nor was new and material evidence received within one year of the letter. Thus, the determination is final. Despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The Board has therefore reviewed the entire record, with particular attention to the additional evidence received since the last final rating decision in May 1999. That evidence includes the report of the appellant's April 2014 VA examination and her statements to the effect that she continues to experience pelvic pain. This evidence is new, as it was not before the RO at the time of its May 1999 rating decision. Further, presuming its credibility, it is material, as it relates to an unestablished fact necessary to substantiate the claim. Service connection was denied, in part, because there was no evidence of a current disability for which compensation may be established. Under these circumstances, the Board finds that new and material evidence has been presented. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Accordingly, the Board finds that the appellant's previously denied claim for service connection for miscarriages and pelvic pain, to include as secondary to hysterectomy with right salpingectomy is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. B. Entitlement to service connection for miscarriages and pelvic pain, to include as secondary to hysterectomy with right salpingectomy. The appellant's request to reopen the previously denied claim of service connection for chronic pelvic pain was received on June 24, 2010. She explained that she still experiences chronic pelvic pain. A July 2010 letter from Dr. L.S.R. states that she presented in October 2009 with a long history of chronic pelvic pain, dysmenorrhea, and abnormal uterine bleeding. A robotic hysterectomy was performed in November 2009. Her pathology report confirmed adenomyosis, fibroids, and chronic inflammation. Dr. L.S.R. stated that, postoperatively, the appellant has had a complete resolution of her symptoms. The appellant was afforded a VA examination in April 2014. The claims file was reviewed. The VA examiner stated that the appellant previously was diagnosed with dysmenorrhea, menorrhagia, adenomyosis, endometriosis, and uterine fibroids, all of which had resolved. She also underwent a hysterectomy in November 2009. The appellant reported that she has been experiencing pelvic pain since 1976. She reported that she underwent multiple procedures prior to her hysterectomy and none of such procedures alleviated her pelvic pain. Examination revealed that the appellant did not currently have any symptoms related to a gynecological condition, including any diseases, injuries, or adhesions of the female reproductive organs. Benign polyps of the cervix were removed in 2003. There was no uterine prolapse. Uterine fibroids and irregular menstruation were noted. The cause of irregular menstruation was unknown, fibroids vs. endometriosis vs. adenomyosis. The right fallopian tube was removed in 1992. The appellant was noted to have undergone natural menopause. The appellant experienced 10 miscarriages from 1986 to 1992. Scars were present; however, none were painful or unstable; and the total area of such scars was not greater than 39 square cm. (6 square inches). The VA examiner observed that a May 1987 laparoscopy for dysmenorrhea and chronic pelvic pain was normal. An April 1997 ultrasound documented a widened endometrial strip and enlarged uterus. A May 1997 endovaginal ultrasound showed that the endometrial stipe remained thickened. A recommended endometrial biopsy was performed in December 1997 which resulted in a diagnosis of implant, endometriosis. Cervical cytology was normal. A uterine ablation for menorrhagia and adenomyosis was performed in 2003. A pelvic ultrasound was performed in March 2005, which showed that the endometrial strip was normal. The results noted fibroids vs. adenomyosis. A September 2009 ultrasound documented fibroids and adenomyosis. The examiner explained, however, that the appellant does not have a diagnosed gynecological condition following her November 2009 hysterectomy. Upon weighing the evidence, the Board finds that the preponderance of the evidence is against the appellant having a current disability manifested by miscarriages or pelvic pain during any portion of the period on appeal. The appellant underwent a hysterectomy in November 2009 and her claim to reopen was received in June 2010. Service connection is currently in effect for hysterectomy with right salpingectomy and a 30 percent rating has been assigned. She is also in receipt of special monthly compensation based on the anatomical loss of a creative organ. The most probative evidence indicates that she does not have an additional disability manifested by pelvic pain and miscarriages. Both Dr. L.S.R. and the April 2014 VA examiner have indicated that the appellant's symptoms resolved following her hysterectomy and that she does not currently have an additional diagnosed gynecological disability. There is no medical evidence to the contrary. The Board has considered the appellant's lay history of symptomatology related to her claimed disorder throughout the appeal period. She is competent to report such symptoms and observations because this requires only personal knowledge as it comes through an individual's senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The appellant in this case is not competent to render a diagnosis as to the origin of her symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Regardless, the Board finds the VA examination report and the July 2010 letter from Dr. L.S.R. to be of greater probative weight than the appellant's lay assertions in determining whether she exhibits an additional disability manifested by pelvic pain and miscarriages. Both physicians considered the appellant's lay assertions in rendering their medical opinions. Although the appellant has competently reported experiencing pelvic pain throughout the period on appeal, pain alone, without a diagnosed or identifiable underlying condition, does not constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). C. Entitlement to service connection for a bilateral foot disability, to include bilateral plantar fasciitis and heel spur syndrome with swelling of the feet and ankles. The appellant's June 1976, June 1978, May 1979, April 1987, August 1992, and January 1997 medical examinations all found her feet to be normal. The appellant's May 1998 retirement examination found that her feet were normal. In her June 1976, June 1978, April 1979, and January 1997 Reports of Medical History, the appellant denied having, or ever having had, foot trouble. A November 1976 clinical note states that the appellant complained of arch pain for four to five days. She stated that she had no arch problems before active duty. Examination revealed lowered arches bilaterally and tenderness to palpation. The impression was fallen arches. A November 1976 podiatry note, from later that day, states that arch heights were clinically normal. There was a significant pronatory abnormality. Range of motion was adequate and muscle strength was within normal limits. There was no history of trauma. There was minimal palpable tenderness. The impression was mild fascial strain. The plan was to use heat and arch "cookies," a type of foot pad. A February 1980 clinical note states that the appellant complained of severe pain in the arch of the foot for five days. An August 1985 clinical note states that the appellant complained of arch pain in the right foot for seven days. She reported that her arch falls when running. There was no edema or discoloration. The impression was fallen arch in the right foot. She was issued arch support. An August 2010 chart from Village Podiatry Group states that the appellant reported bilateral foot pain. Prior diagnoses listed were "other acquired deformity of the ankle," heel spur, plantar fascial fibromatosis, and edema. The appellant was afforded a VA examination in March 2011. The claims file was reviewed. The appellant reported that she began experiencing foot problems during basic training in 1976. The examiner observed that a November 1976 clinical note showed an assessment of fallen arches. A November 1976 podiatry note from the same day, however, stated that arch heights were clinically normal. Mild fascial strain was diagnosed. The appellant was also seen in February 1980 and August 1985 for foot pain. She was given a referral for arch support. The January 1997 examination report noted that her feet were normal. Foot trouble was denied during her 1998 retirement examination. Examination revealed no evidence of fallen arches. On current examination, X-rays showed tiny heel spurs but were otherwise normal. The examiner opined that it was less likely than not that the appellant's bilateral plantar fasciitis and/or heel spur syndrome were caused by or related to her active service because she currently had no evidence of fallen arches and because service treatment records were negative for documentation of chronic bilateral plantar fasciitis or bilateral heel spurs. An April 2011 chart from Village Podiatry Group states that the appellant reported increased bilateral foot pain. Prior diagnoses listed were bursitis, heel spur, plantar fascial fibromatosis, edema, and xerosis. Upon weighing the evidence, the Board finds that the preponderance of the evidence is against the claim because the most probative evidence shows that her current bilateral foot disorder did not have its inception during service and is not otherwise causally related to her active service or any incident therein. The March 2011 VA examiner's opinion is entitled to great probative weight because it is well-reasoned and based upon an examination of the appellant and a review of the medical evidence of record. The examiner explained that, although there was evidence of fallen arches during active service, there was no evidence that the appellant currently had fallen arches. Further, the examiner explained that the foot disabilities currently experienced by the appellant were not related to her active service because there was no evidence of complaints, observations, or treatment regarding plantar fasciitis or heel spurs or associated symptoms. The Board observes that there is no competent medical evidence linking the appellant's currently-diagnosed foot disabilities to her active service, including in the private records from Village Podiatry Group. As multiple medical examination reports, including her May 1998 retirement examination, noted that the appellant's feet were normal, and the appellant herself denied having foot trouble in numerous Reports of Medical History, the appellant's in-service foot problems from the 1970s and 1980s appear to have resolved. This is consistent with the opinion of the VA examiner, who explained that the type of symptoms the appellant currently experiences are due to different foot conditions than those she experienced in service. Although the appellant is competent to report foot pain, as discussed above, she is not competent to determine the cause of her current symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. See Layno, 6 Vet. App. at 470. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER New and material evidence having been received, the claim of entitlement to service connection for miscarriages and pelvic pain, to include as secondary to hysterectomy with right salpingectomy, is reopened. Entitlement to service connection for a disability manifested by miscarriages and pelvic pain, to include as secondary to hysterectomy with right salpingectomy, is denied. Entitlement to service connection for a bilateral foot disability, to include bilateral plantar fasciitis and heel spur syndrome with swelling of the feet and ankles, is denied. REMAND In an October 2015 addendum to the October 2015 migraine VA examination report, reference is made to three clinical notes from Dr. R.G.B. from October, November, and December 2014. However, only an October 2014 clinical note from such clinician is of record. As the October 2015 VA examiner appears to have reviewed such records, they were in the possession of VA at one time and may still be. Upon remand, such clinical notes from Dr. R.G.B. regarding November and December 2014 appointments should be associated with the claims file. If such records are no longer in the possession of VA, any authorizations needed should be requested from the appellant such that VA may obtain private treatment records directly from Dr. R.G.B. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file the November and December 2014 clinical notes from Dr. R.G.B., as referenced by the October 2015 VA examiner in an addendum. If such records are not already in VA's possession, appropriate authorization from the appellant, if needed, should be requested such that VA may request records directly from Dr. R.G.B. 2. After undertaking any additional administrative or development actions deemed necessary, the AOJ should readjudicate the claim, considering all the evidence of record. If the benefit sought remains denied, a Supplemental Statement of the Case should be issued, followed by an appropriate period of time to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (2012). ______________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs