Citation Nr: 18140142 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 12-14 284 DATE: October 2, 2018 ORDER New and material evidence having been submitted, the claim of service connection for fibromyalgia is reopened. Entitlement to service connection for multiple hernias is dismissed. REMANDED Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for hysterectomy, to include as secondary to the Veteran's service-connected gynecological condition and cervical cancer is remanded. Entitlement to service connection for cervical cancer, to include as secondary to the Veteran's service-connected gynecological condition is remanded. Entitlement to service connection for an acquired psychiatric condition, to include posttraumatic stress disorder (PTSD) and depression, to include as secondary to the Veteran's service-connected gynecological condition and infertility, is remanded. FINDINGS OF FACT 1. Service connection for fibromyalgia was denied in a May 2005 rating decision on the basis that the disability was not incurred during the Veteran’s active service. The Veteran did not submit new and material evidence, nor otherwise file an appeal during the allowed one-year appellate period thereafter. 2. Evidence submitted in May 2018 hearing testimony is new, and when credibility is presumed solely for the purpose of reopening the claim, raises a reasonable possibility of substantiating the claim of service connection. 3. In sworn hearing testimony provided in May 2018 before the undersigned, prior to the promulgation of a decision in this case, the Veteran and her representative requested to withdraw the claim of service connection for multiple hernias CONCLUSIONS OF LAW 1. The May 2005 rating decision that denied the Veteran’s claim of entitlement to service connection for fibromyalgia is final. 38 U.S.C. § 7105 (2000); 38 C.F.R. §§ 20.302, 20.1103 (2005). 2. The criteria for reopening the claim of entitlement to service connection fibromyalgia have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for withdrawal of the appeal of the claim for service connection for multiple hernias by the appellant have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1974 to September 1976, with additional periods of inactive service in the United States Air Force Reserve and the California Army National Guard. The Veteran appeared before the undersigned Veterans Law Judge in a videoconference hearing in May 2018 to present testimony on the issues on appeal. Service Connection 1. New and material evidence having been submitted, the claim of service connection for fibromyalgia is reopened Where a claim has been finally adjudicated in the past, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 7105; 38 C.F.R. § 3.156 (a). New evidence is defined as evidence not previously submitted to VA decision makers, and material evidence is defined as that which, 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). Determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a relatively low threshold. Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to ultimately grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). To establish whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the present case, the Veteran’s claim of entitlement to service connection for fibromyalgia was last finally denied in May 2005. The Veteran has since provided testimony before the undersigned Veterans Law Judge in May 2018, asserting that her fibromyalgia results from an in-service fall from the top of a rail car. This evidence is both new and material, and when presumed credible for the limited purpose of the petition to reopen the claim, raises a reasonable possibility of substantiating the underlying claim of service connection. As new and material evidence has been received, the claim of entitlement to service connection for fibromyalgia is reopened, and to this extent only, the claim is granted. 38 U.S.C. §5108; 38 C.F.R. § 3.156. 2. Entitlement to service connection for multiple hernias is dismissed The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. In the present case, the appellant has withdrawn this appeal and, hence, there remains no allegation of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND For each of the claims below, the Veteran asserts that VA treatment records are missing. At her hearing in May 2018, the Veteran and her representative stated that VA treatment records from 1974 to 2001 appear to be missing from the claims file from the VA Medical Center (VAMC) in Portland, Oregon and an associated outpatient clinic the Veteran identifies as being located in Tigard, Oregon. The Board finds, however, that VA treatment records from Portland, Oregon, including outpatient clinic visits, have been associated with the claims file from October 1976, March 1990 to December 2002, and subsequently. Treatment records are also associated with the claims file from Kaiser Foundation Hospital and Oregon Health Science Center University Hospital. As such, it is unclear exactly which records the Veteran believes to be missing from the claims file as those from Portland, Oregon and associated outpatient clinics are present during the referenced time periods. Nonetheless, VA has a duty to assist the Veteran, making as many requests as necessary to obtain relevant records from any Federal department or agency, including VA. 38 C.F.R. § 3.159(c)(2). This duty to assist also applies for any medical records held in relation to the Veteran’s Reserve and National Guard service, both of which occurred during the period for which there are no VA treatment records currently associated with the claims file, including for the period from October 5, 1976 to March 5, 1990. To afford the Veteran the requested assistance in obtaining medical records, a remand is necessary to obtain any VA treatment records not currently associated with the claims file from Portland, Oregon and any associated outpatient clinics between 1976 and 1990, and to obtain all relevant records from the Veteran’s periods of Reserve and National Guard service. 1. Entitlement to service connection for fibromyalgia is remanded. The Veteran is competent and credible in describing an in-service fall in 1975, even though the fall itself or any resulting injuries are not documented in her service treatment record. See Hearing transcript, May 2018. The Veteran asserts that her currently diagnosed fibromyalgia stems from this in-service fall. She has not been afforded a VA examination for fibromyalgia to date. The Board cannot make a fully-informed decision on the issue of service connection for fibromyalgia because no VA examiner has opined whether the Veteran’s current diagnosis is medically related to her active service, including the described fall. 2. Entitlement to service connection for cervical cancer and hysterectomy, to include as secondary to the Veteran's service-connected gynecological condition is remanded. The Veteran’s service-connected gynecological condition has previously been described as encompassing residuals of cervicitis, and residuals of an in-service procedure performing cauterization of the cervix, and dilation and curettage (D&C) of the uterus with a cone biopsy showing dysplasia, and should be considered as such. See Rating Decision, June 1995; see also In-service postoperative report, November 1975. The Board cannot make a fully-informed decision on the issues of service connection for cervical cancer, and hysterectomy due to cervical cancer, because no VA examiner has opined whether these conditions are medically related to the Veteran’s in-service gynecological symptoms, or are secondary to her service-connected gynecological residuals. 3. Entitlement to service connection for PTSD and depression, to include as secondary to the Veteran's service-connected gynecological condition and infertility, is remanded. The Veteran initially sought service connection for depression, but in May 2018 hearing testimony stated that she “found out it was PTSD later on down the line.” On this basis, and considering relevant case law, this claim has been recharacterized as listed above. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding in essence that when a Veteran makes a claim for a specific disease or condition, he is seeking service connection for the symptoms presented by that condition regardless of how those symptoms are diagnosed or labeled). The Veteran asserts that she has been treated for her psychiatric condition since the year that she left active service. More information is needed to allow the Board to make a fully-informed decision. It is unclear whether the Veteran has a current diagnosis of PTSD. Additionally, no VA examiner has opined whether any currently diagnosed psychiatric condition is related to an in-service injury, event, or disease. The matters are REMANDED for the following action: 1. Obtain all VA treatment records from the Portland, Oregon VAMC and/or associated outpatient clinics that are not currently associated with the claims file, particularly including any records from October 5, 1976 to March 5, 1990. Also, be aware that any treatment records sought from 1999-2006 may use the Veteran’s “also known as” married name listed above. 2. Obtain the Veteran’s treatment and personnel records pertaining to her service in the United States Air Force Reserve from October 1976 to September 1983, and in the California National Guard from October 1983 to October 1985. Document all requests for information as well as all responses in the claims file. 3. Schedule the Veteran for an examination to determine the nature and etiology of her fibromyalgia. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s reported fall from a rail car in 1975. 4. Schedule the Veteran for an examination to determine the nature and etiology of her claimed cervical cancer and hysterectomy. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including her chronic cervicitis, dysplasia found on biopsy in 1975, or any other gynecological symptoms shown during service. Also opine whether either cervical cancer or hysterectomy is at least as likely as not (1) proximately due to her service-connected gynecological disability, or (2) aggravated beyond its natural progression by her service-connected gynecological disability. 5. Schedule the Veteran for an examination to determine the nature and etiology of any currently diagnosed psychiatric condition. The examiner must opine whether each of any such diagnosed psychiatric conditions is at least as likely as not related to an in-service injury, event, or disease. Also opine whether any diagnosed psychiatric condition is at least as likely as not (1) proximately due to the Veteran’s service-connected gynecological disability, or (2) aggravated beyond its natural progression by her service-connected gynecological disability. If any psychoses are diagnosed, opine whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDonald