Citation Nr: 18141391 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 16-43 026 DATE: October 10, 2018 ORDER New and material evidence has been received to reopen the previously denied claim for service connection for a gynecological disability, and to this extent only, the appeal is granted. Entitlement to an effective date earlier than March 20, 2015 for the grant of service connection for maxillary sinusitis is denied. REMANDED Entitlement to service connection for a bilateral hip disability, to include as secondary to service-connected left knee disability, is remanded. Entitlement to service connection for a right knee disability, to include as secondary to service-connected left knee disability, is remanded. Entitlement to service connection for a gynecological disability is remanded. Entitlement a rating in excess of 10 percent for a left knee disability is remanded. Entitlement an initial rating in excess of 50 percent for maxillary sinusitis is remanded. Entitlement to a rating in excess of 10 percent for headaches is remanded. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to an earlier effective date for the award of a 50 percent rating for PTSD is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for a gynecological disability was denied in a July 2013 rating decision that was not timely appealed, nor was any new and material evidence submitted within the appeal period; that decision is final. 2. The Veteran's original claim for service connection for maxillary sinusitis was received by VA on March 20, 2015; there were no formal or informal claims prior to that date. CONCLUSIONS OF LAW 1. The criteria to reopen the claim for service connection for a gynecological disability have been met. 38 U.S.C. §§ 5108; 38 C.F.R. §§ 3.156 2. The criteria for an effective date earlier than March 20, 2015 for the grant of service connection for maxillary sinusitis have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1988 to November 1991, to include service in the Southwest Asia theater of operations from December 1990 to June 1991. These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a gynecological disability Service connection for a gynecological disability was denied in a July 2013 rating decision on the basis that there was no evidence that the Veteran’s gynecological disability was incurred in or otherwise related to service. The Veteran did not submit a timely notice of disagreement or new and material evidence during the appeal period, and the decision became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2018). Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (2012). 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. 38 C.F.R. § 3.156(a) (2018). 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. Id. The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The evidence received since the July 2013 rating decision includes evidence that is both new and material to the claim. For example, VA treatment records note additional gynecological diagnoses and a May 2016 gynecological conditions examination report and May 2015 opinion address whether the Veteran’s gynecological disability is related to service. This new evidence addresses the reason for the previous denial; that is, a nexus to service, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. 2. Entitlement to an effective date earlier than March 20, 2015 for the grant of service connection for maxillary sinusitis The effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). If the claim for service connection is received within one year of a veteran’s discharge from service, the effective date of an award of service connection will be the day following discharge from service or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1) (2012); 38 C.F.R. § 3.400(b)(2) (2018). The effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400(q)(2), (r) (2018). On March 20, 2015 VA received a VA Form 21-526EZ requesting service connection for a “sinus condition.” A May 2015 rating decision granted service connection for maxillary sinusitis with an effective date of March 20, 2015. After thoroughly reviewing the record, the Board finds that prior to March 20, 2015, there were no pending and unadjudicated claims for service connection for a sinus condition. While the Veteran has requested an earlier effective date, she has not indicated why an earlier effective date is warranted. Specifically, she has not identified any claim for service connection for a sinus condition prior to March 20, 2015. Accordingly, March 20, 2015 is the appropriate effective date for service connection Maxillary sinusitis and the Veteran’s claim for an effective date prior March 20, 2015 for the grant of service connection must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral hip disability, to include as secondary to service-connected left knee disability, is remanded. 2. Entitlement to service connection for a right knee disability, to include as secondary to service-connected left knee disability, is remanded. 3. Entitlement to service connection for a gynecological disability is remanded. 4. Entitlement a rating in excess of 10 percent for a left knee disability is remanded. 5. Entitlement an initial rating in excess of 50 percent for maxillary sinusitis is remanded. 6. Entitlement to a rating in excess of 10 percent for headaches is remanded. 7. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. 8. Entitlement to an earlier effective date for the award of a 50 percent rating for PTSD is remanded. The evidence indicates there may be outstanding relevant VA treatment records. An August 4, 2017 VA treatment record indicates that the Veteran was to return for a follow up appointment in two weeks. VA treatment records subsequent to August 14, 2017 have not been associated with the claims file. Additionally, VA treatment records from January 19, 2017, October 28, 2016, June 2, 2016, September 29, 2014, August 8, 2014, August 1, 2014, June 20, 2014, June 6, 2014, and May 30, 2014 indicate that non-VA records had been scanned into VistA Imaging. It does not appear that these records have been associated with the claims file. A remand to obtain the records is required. The record indicates that there are outstanding private treatment records. A June 4, 2014 VA treatment record noted that the Veteran was scheduled for gynecological surgery at St. Peter’s Hospital. To date, these records have not been requested or otherwise obtained. On remand, reasonable efforts should be made to obtain them. The claims file indicates that the Veteran receives ongoing services from VA vocational rehabilitation. To date, the Veteran’s vocational rehabilitation folder has not been associated with the record. Accordingly, on remand the Veteran’s complete VA vocational rehabilitation counseling folder, to include all evaluations and narrative reports, should be obtained. There also appear to be outstanding Workman’s Compensation records. A February 9, 2016 VA correspondence indicates that the Veteran was a VA employee and had a claim pending with the Office of Workers’ Compensation Programs for a hip injury. On remand reasonable efforts must be made to obtain any pertinent Workers’ Compensation records. Regarding the Veteran’s bilateral hip and right knee claims, she was provided VA examinations in June 2015. The examiner stated that the Veteran’s bilateral hip and right knee disabilities were not proximately due to or the result of the Veteran’s service-connected left knee disability. The examiner’s opinions did not address the aggravation prong of secondary service-connection. In light of the above, addendum opinions are warranted. Additionally, multiple service treatment records from June 1990 indicate that the Veteran had a trauma to her right knee and upper thigh that was accompanied by a contusion and pain. Accordingly, the addendum opinion should also address direct service connection. Concerning the Veteran’s left knee disability, her last VA examination was in September 2015. The record indicates that the Veteran had left knee replacement surgery in January 2017. Accordingly, on remand a VA examination is warranted to determine the current severity of the Veteran’s left knee disability, status post knee replacement. Regarding the Veteran’s headache claim, her last VA examination was in May 2015. The examination report indicates that the Veteran did not have any non-headache symptoms associated with her headaches, that her headaches were non-prostrating, and that her headaches caused no functional impact. In an October 2017 statement, the Veteran reported that her headaches were now accompanied by dizziness, nausea, and vomiting. In light of the evidence suggesting a possible worsening since the Veteran’s last VA examination, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of her headaches. In an October 2017 statement, the Veteran asserted that her PTSD had worsened since she was last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of her PTSD. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated her for her claimed disabilities. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. Obtain and associate the Veteran’s complete VA vocational rehabilitation counseling folder, to include all evaluations and narrative reports. If the records are not available, the claims file should be annotated to reflect such and the Veteran notified of such. 3. After receiving any necessary contact information and authorization from the Veteran, request copies of the Veteran’s Workman’s Compensation records. If the requested records are not available, the Veteran should be notified of such. 4. After the above is completed to the extent possible, forward the claims file to a VA clinician to obtain an addendum opinion regarding the Veteran's bilateral hip disability. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should opine: (a.) Whether it is at least as likely as not (50 percent probability or greater) that any bilateral hip disability had its onset during service or is otherwise related to service, to include her June 1990 right upper thigh trauma. (b.) Whether it is at least as likely as not (50 percent probability or greater) that any bilateral hip disability was caused by her service-connected left knee disability? (c.) If not caused by service-connected left knee disability, is it at least as likely as not that the Veteran's bilateral hip disability is worsened beyond natural progression (aggravated) by service-connected left knee disability? If the clinician finds that the Veteran's bilateral hip disability was aggravated by service-connected left knee disability, the clinician should attempt to quantify the level of aggravation beyond the baseline level of the bilateral hip disability. In rendering the above requested opinions, the clinician should address the Veteran’s assertions that gait disturbances due to her service-connected left knee and obesity from her inability to exercise due to her service-connected left knee and service-connected PTSD medications caused or aggravated her bilateral hip disability. The clinician should also address the September 2017 evaluation from Dr. Ali and the treatise evidence of record. A complete rationale should be provided for all opinions and conclusions expressed. 5. Forward the claims file to a VA clinician to obtain an addendum opinion regarding the Veteran’s right knee. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should opine: (a.) Whether it is at least as likely as not (50 percent probability or greater) that any right knee disability had its onset during service or is otherwise related to service, to include her from June 1990 right knee trauma. (b.) Whether it is at least as likely as not (50 percent probability or greater) that the any right knee disability was caused by her service-connected left knee disability? (c.) If not caused by the service-connected left knee disability, is it at least as likely as not that the Veteran’s any right knee disability is worsened beyond natural progression (aggravated) by the service-connected left knee disability? If the clinician finds that the Veteran’s any right knee disability was aggravated by the service-connected left knee disability, the clinician should attempt to quantify the level of aggravation beyond the baseline level of the right knee disability. In rendering the above requested opinions, the clinician should address the Veteran’s assertions that gait disturbances due to her service-connected left knee and obesity from her inability to exercise due to her service-connected left knee and service-connected PTSD medications caused or aggravated her right knee disability. The clinician should also address the September 2017 evaluation from Dr. Ali and the treatise evidence of record. A complete rationale should be provided for all opinions and conclusions expressed. 6. Schedule the Veteran for a VA headache examination to determine the current severity of the Veteran’s headaches. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. All symptomatology associated with the headaches should be reported. 7. Schedule the Veteran for a VA PTSD examination to determine the current severity of her PTSD. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. All symptomatology associated with the Veteran’s PTSD should be reported. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Anderson