Citation Nr: 18159507 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 17-06 086 DATE: December 19, 2018 ORDER As new and material evidence has been received, the claim for entitlement to service for a low back disability is reopened, and to this extent only, the appeal is granted. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for liver and abdominal adhesions is remanded. FINDINGS OF FACT 1. The October 1995 rating decision that denied service connection for a low back disability was not timely appealed and became final. 2. Evidence received since the October 1995 rating decision raises a reasonable possibility of substantiating the underlying claim for service connection for a low back disability. CONCLUSIONS OF LAW 1. The October 1995 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. Evidence received since the October 1995 rating decision is both new and material and the claim for entitlement to service connection for a low back disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1990 to April 1994. These matters are on appeal from a November 2015 rating decision. Jurisdiction of this appeal is with the Regional Office (RO) in Winston-Salem, North Carolina. New and Material Evidence Rating actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, 20.302(a). VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decisionmakers. Material evidence is 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 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a low one. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, consideration need not be limited 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. See id. at 117-18. Moreover, new and material evidence is not required as to each previously unproven element of a claim. See id. at 120. The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Whether new and material evidence has been received to reopen the claim for service connection for a low back disability The last prior final denial for the claim for service connection for a low back disability was an October 1995 rating decision. It is final because the Veteran did not file a notice of disagreement within one year of the rating decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Therefore, the Board looks to the evidence submitted since October 1995 for new and material evidence. When determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. See Hodge, 155 F.3d at 1356. In this regard, the Board notes that in the October 1995 rating decision, the RO denied the Veteran’s claim for service connection because the Veteran was not shown to have a current low back disability. Evidence received since October 1995 includes the examination report from a November 2015 VA medical examination in which the Veteran was diagnosed with recurrent lumbar strain. As this evidence was not of record at the time of the October 1995 denial and it relates to an unestablished fact necessary to substantiate the Veteran’s claim, the Board finds the evidence to be both new and material. 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. at 117. Accordingly, the claim for entitlement to service connection for a low back disability is reopened. REASONS FOR REMAND Unfortunately, the remaining claims on appeal must be remanded for further development. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide these claims so that the Veteran is afforded every possible consideration. 1. Entitlement to service connection for liver and abdominal adhesions is remanded. The Veteran seeks entitlement to service connection for liver and abdominal adhesions, which she contends were incurred during service as a result of complications of pregnancy and labor, including contracting chorioamnionitis which resulted in her requiring a cesarean section, and post-cesarean endomyometritis. The Veteran has reported experiencing abdominal pain and discomfort since undergoing the cesarean section in June 1993. She underwent a laparoscopy in October 2000, which revealed extensive pelvic and abdominal adhesions. In a December 2013 treatment record, the Veteran’s primary care physician, Dr. D., noted, in a review of the Veteran’s surgical history, that the Veteran underwent laparoscopic lysis of adhesions in 2000 which found “Fitz-Hugh-Curtis adhesions above [the] liver.” However, a review of the October 2000 post-operative report does not show that the Veteran was found to have adhesions consistent with Fitz-Hugh-Curtis syndrome; she was only noted to have “extensive pelvic and abdominal adhesions” and the surgeon did not opine as to etiology of the adhesions. Therefore, it is not clear to the Board where Dr. D got this information or diagnosis. In August 2015, the Veteran submitted a statement from Dr. H, her private obstetrician-gynecologist, in which the doctor stated that the Veteran has a diagnosis of liver and abdominal adhesions. Dr. H then provided the following opinion: “One cannot say exactly how long this condition existed prior to the date of diagnosis or definitely state its cause. However, it is at least as likely as not that [the Veteran’s] 1993 C-Section caused or contributed to her current pelvic pain, back pain, and abdominal adhesions.” The doctor did not provide any supporting medical rationale for his opinion. The Veteran underwent a VA examination in November 2015. The VA examiner diagnosed the Veteran with Fitz-Hugh-Curtis syndrome based solely on the treatment note in which the Veteran’s primary care physician stated that the Veteran has “Fitz-Hugh-Curtis adhesions above the liver.” The VA examiner also referenced a July 2011 treatment note by the same physician which purported to show that the Veteran has a diagnosis of pelvic inflammatory disease. The examiner concluded that the Veteran’s pelvic and liver adhesions were less likely than not incurred in or caused by the cesarean section during service. In making this finding, the examiner determined that the Veteran’s pelvic and liver adhesions are due to Fitz-Hugh-Curtis syndrome, which is associated with pelvic inflammatory disease, and not related to cesarean section. In November 2015, the Veteran submitted a statement refuting the findings of the VA examiner, contending that she has never been diagnosed with pelvic inflammatory disease and that the July 2011 medical record referenced by the VA examiner does not exist. The Board notes that the record contains a July 2011 treatment note by Dr. D, however, there is no mention of a diagnosis of pelvic inflammatory disease. The Veteran also submitted a November 2015 letter from Dr. D confirming that the Veteran does not have a diagnosis of pelvic inflammatory disease. The physician opined that he does not believe the Veteran had Fitz-Hugh-Curtis syndrome when he treated her for abdominal pain in February 2011 as this syndrome is caused by pelvic inflammatory disease, which testing had ruled out. However, Dr. D reviewed the October 2000 post-laparoscopy report and opined that the Veteran had suffered an episode of peritonitis (inflammation of the membrane lining the abdomen and the abdominal organs) at that time. He remarked that this would be consistent with peritonitis caused by the chorioamnionitis contracted during child birth. After thorough review of the medical evidence of record, the Board does not find that the record contains a competent medical opinion that adequately addressed the etiology of the Veteran’s liver and abdominal adhesions. Therefore, the Veteran’s claim must be remanded for a new VA examination and medical opinion before the Board can render an informed decision on the claim. Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). In this regard, the Board notes that, although favorable to the Veteran, the medical opinions provided by Dr. H and Dr. D cannot be relied upon to grant the Veteran’s claim for service connection because they are conclusory and not supported by adequate medical rationale. Furthermore, the Board finds the November 2015 VA medical opinion to be inadequate because the examiner relied on an inaccurate factual premise when she concluded that the Veteran has a diagnosis of Fitz-Hugh-Curtis syndrome related to pelvic inflammatory disease. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993). In fact, there is no medical evidence that the Veteran has ever had a diagnosis of pelvic inflammatory disease, and evidence received since the November 2015 examination suggests that the Veteran does not actually have a diagnosis of Fitz-Hugh-Curtis syndrome either. Moreover, the examiner did not consider that there may be other, more likely causes of the Veteran’s liver and abdominal adhesions, such as complications from chorioamnionitis, cesarean section, or endomyometritis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (it is the factually accurate, fully articulated, and sound reasoning for the conclusion that contributes to the probative value of a medical opinion). When VA undertakes to provide a VA examination or opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, on remand, a new VA examination and medical opinion must be obtained that adequately addresses the etiology of the Veteran’s liver and abdominal adhesions. 2. Entitlement to service connection for a low back disability is remanded. The Veteran also seeks service connection for a low back disability, which she argues is related to or caused by her severe abdominal and pelvic adhesions. The Veteran contends that she has experienced low back pain since undergoing a cesarean section during service. The Veteran underwent a VA examination in November 2015. Upon examination, the examiner diagnosed the Veteran with recurrent lumbar strain. The Board notes that the Veteran did not undergo any diagnostic testing, such as imaging studies (x-ray, MRI, CT scan, ultrasound) on her back. The examiner determined that the Veteran’s recurrent lumbar strain was less likely than not incurred in or caused by an in-service injury or event because lumbar strain is a mechanical process and not caused by cesarean section. The Board finds this medical opinion to be inadequate because the examiner did not adequately consider or attempt to verify the Veteran’s contentions that her pelvic and abdominal adhesions are causing her low back pain. Significantly, the examiner did not conduct any diagnostic testing, including imaging studies, in order to attempt to determine the etiology of the Veteran’s low back pain. Moreover, there is no evidence that the examiner considered the Veteran’s lay statements regarding the in-service onset of her low back pain and her continuous symptoms since. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Therefore, on remand, a new medical opinion must be obtained that adequately addresses the etiology of the Veteran’s low back disability. Accordingly, the matters are REMANDED for the following action: Schedule the Veteran for a new VA examination, with a medical professional (M.D.) who has not previously examined her, to determine the nature and etiology of her liver and abdominal adhesions and low back disability. The examiner must review the Veteran’s entire claims file, to include a copy of this REMAND, and that review must be noted in the report. A complete history of symptoms should be elicited from the Veteran and all diagnostic testing and/or imaging deemed necessary should be accomplished. Thereafter, the examiner should provide an opinion with respect to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s liver and abdominal adhesions were incurred in or caused by an in-service injury, event, or illness, to include complications of labor (i.e. chorioamnionitis, cesarean section, endomyometritis)? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s low back disability was incurred in or caused by an in-service injury, event, or illness, to include complications of labor (i.e. chorioamnionitis, cesarean section, endomyometritis)? In formulating the opinion, the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. It is imperative that the examiner’s report reconcile the evidence of record, to include the Veteran’s lay statements, service treatment records, post-service medical records, including all prior VA examinations and medical opinions, and any other lay evidence. The examiner must set forth a complete rationale for the conclusion(s) reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Melissa Barbee, Associate Counsel