Citation Nr: 1807990 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-25 091A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen the issue of entitlement to service connection for migraine headaches. 2. Whether new and material evidence has been received sufficient to reopen the issue of entitlement to service connection for cervical cancer; and if so, whether service connection is warranted for a gynecological disability. 3. Whether new and material evidence has been received sufficient to reopen the issue of entitlement to service connection for hypertension; and if so, whether service connection is warranted. 4. Entitlement to service connection for hypercholesterolemia. 5. Entitlement to service connection for a neck disability. 6. Entitlement to service connection for right shoulder disability. 7. Entitlement to service connection for left shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served in the United States Navy Reserves between April 1997 and April 2011, with active duty from August 2004 to September 2004, August 2005 to May 2006, and January 2008 to March 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran presented testimonial evidence at a "Travel Board" hearing held at her local RO before the undersigned Veterans Law Judge in August 2017. A transcript of the hearing is of record. The United States Court of Appeals for Veterans Claims ("the Court") addressed the scope of a claim in regard to a claimed disability in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons, the Court held that in determining the scope of a claim, the Board must consider the Veteran's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Id. at 5. While the RO previously identified issues on appeal as including whether new and material evidence had been submitted to reopen the issue of entitlement to service connection for cervical cancer, entitlement to service connection for neck strain with right trapezius involvement, and entitlement to service connection for left shoulder sprain, evidence of record demonstrates that the Veteran has undergone hysterectomy and left oophorectomy due to uterine fibroids and left ovarian cyst, respectively and cervical discectomy and fusion, and has also been seen for left and right shoulder pain which is musculoskeletal and/or neurological in nature associated with the Veteran's neck disability. A claimant is not required in filing a claim for benefits to identify a precise medical diagnosis or the medical cause of her condition, but rather, sufficiently files a claim for benefits "by referring to a body part or system that is disabled or by describing symptoms of the disability." Brokowski v. Shinseki, 23 Vet. App. 79, 86 (2009). In light of the Court's decisions in Clemons and Brokowski, the Board has recharacterized the relevant issues on appeal to provide the most favorable review of the claims in keeping with the Court's holdings. The issues of entitlement to service connection for a gynecological disability, hypertension, a neck disability, and right and left shoulder disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an April 2007 rating decision, the RO denied the Veteran's claims of entitlement to service connection for migraine headaches, cervical cancer, and hypertension; the Veteran did not submit a Notice of Disagreement and new and material evidence was not received within the relevant appeal period following the denials of service connection. 2. Evidence associated with the claims file since the April 2007 decision denying the Veteran's claim for entitlement to service connection for a gynecological disability is new, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. Evidence associated with the claims file since the April 2007 decision denying the Veteran's claim for entitlement to service connection for hypertension is new, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 4. Evidence associated with the claims file since the April 2007 decision denying service connection for migraine headaches is new, but either does not relate to unestablished facts necessary to substantiate the underlying claim for service connection for migraine headaches or is redundant of evidence of record at the time of the prior denial. 5. Elevated cholesterol is considered to be a laboratory test result and is not a disability for VA service connection purposes. CONCLUSIONS OF LAW 1. The April 2007 decision denying service connection for migraine headaches, cervical cancer, and hypertension is final. 38 U.S.C. § 7105(c) (2004, 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2006, 2017). 2. As evidence pertinent to the claim of entitlement to service connection for a gynecological disability received since the April 2007 decision is new and material, the criteria for reopening the claim are met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. As evidence pertinent to the claim of entitlement to service connection for hypertension received since the April 2007 decision is new and material, the criteria for reopening the claim are met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 4. Evidence received since the final April 2007 rating decision denying service connection for migraine headaches is not new and material, and the claim is not reopened. 38 U.S.C. §§ 5103, 5103A, 5107, 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 5. The requirements for service connection for hypercholesterolemia have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claims to Reopen Issues on the Basis of Receipt of New and Material Evidence Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence means existing evidence not previously received by 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(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The provisions of 38 U.S.C. § 5108 require a review of 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. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The Veteran seeks to establish service connection for migraine headaches, a gynecological disability, and hypertension which she asserts are related to her military service. In the April 2007 rating decision, the RO denied the Veteran's claims of entitlement to service connection for migraine headaches, cervical cancer, and hypertension; the Veteran did not submit a Notice of Disagreement and new and material evidence was not received within the relevant appeal period following the denials of service connection. Therefore, the April 2007 decision became final as to the evidence then of record, and is not subject to revision on the same factual basis. 38 U.S.C. § 7105(c) (2004, 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2006, 2017). Evidence considered at the time of the April 2007 decision includes VA examinations regarding the Veteran's migraine headaches and hypertension, service treatment records for periods of active duty and regular Reserve service provided by the Veteran, and VA treatment records from the VA Medical Center (VAMC) in New Orleans, LA from October 2006 through April 2007. The bases of the RO's April 2007 denials were that the evidence did not demonstrate that the Veteran had a diagnosis of cervical cancer during or after her military service and that there was no evidence that her migraine headaches and hypertension that were present prior to active duty were permanently worsened during active military service. In support of her claim to reopen the issue of entitlement to service connection for migraine headaches, further VA treatment records were associated with the claims file showing continued treatment for migraines, with a May 2008 record documenting worsening headaches associated with nausea, vomiting, photophobia, and spots in front of the eyes. An October 2009 VA treatment telephone note documented the Veteran's reported history of migraine headaches treated with Topamax prior to her deployment. While this evidence is new, it is redundant of service treatment records previously in the claims file at the time of the April 2007 decision demonstrating the presence and severity of migraines prior to active duty and during regular reserve service and speaks to the current post-active duty severity of her headaches, and does not relate to the unestablished criterion of whether there was an increase in disability and aggravation of the disability during active military service. Therefore, at the present time, new and material evidence sufficient to reopen the claim for entitlement to service connection for migraine headaches has not been received, and the petition to reopen the claim must be denied. See 38 C.F.R. § 3.156(a). Since the April 2007 denials of the Veteran's claims for entitlement to service connection for cervical cancer and hypertension, a March 2009 VA treatment record documented her report of being sent back from Iraq due to uncontrolled hypertension and being put on medical leave; and at the August 2017 Board hearing, the Veteran testified that the initial abnormal results from her Pap smear during active duty were the cause of her hysterectomy. This evidence is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claims. As noted above, the credibility of the evidence is also presumed. Therefore it is found to be new and material, and reopening the issues of entitlement to service connection for a gynecological disability and hypertension is warranted. Claim for Service Connection for Hypercholesterolemia The Veteran seeks service connection for hypercholesterolemia which she asserts arose during her military service. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In this case, the initial element has not been met, as the Veteran has not been shown to have a current disability manifested by high cholesterol. Indeed, no such disability has been shown to exist before, during, or after the receipt of her service-connection claim. See Romanowsky v. Shinseki, 26 Vet. App. 289, 321 (2013) (considering the application of McClain v. Nicholson, 21 Vet. App. 319 (2007) to a situation in which a disability manifests prior to the filing of a claim for VA benefits and then resolves before the claim is adjudicated). The Board recognizes that, during the pendency of the Veteran's claim, she has been taking medication for high cholesterol and that hypercholesterolemia was noted in an April 2004 reserve treatment record. However, while considered a risk factor for other disorders such as ischemic heart disease, high cholesterol is not a disability for which VA compensation is payable in isolation. See 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995) (defining a "disability," for VA rating purposes, as an impairment in earning capacity resulting from a diagnosed disease or injury, or the residuals thereof). Rather, to establish entitlement to the benefits sought on appeal, there must be competent evidence of additional impairment, as discernible through VA's Schedule for Rating Disabilities. See generally 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (distinguishing between laboratory findings, such as hyperlipidemia and elevated triglycerides, and disabilities contemplated by the Rating Schedule). While the Veteran's high cholesterol may at some point be contemplated as a manifestation of a service-connected disability, it is at present tantamount to a mere symptom, like pain, which, absent a "diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted." See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). In reaching this determination, the Board does not doubt the Veteran's sincere belief that she has a current disability manifested by high cholesterol. However, the Veteran lacks the specialized knowledge and training required to translate laboratory findings of high cholesterol into a valid diagnosis. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). It follows that her assertions of a separate disability, manifested by those findings, are insufficient to establish such a diagnosis, without corroborating medical evidence. No such evidence has been presented and, thus, service-connection is not warranted. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Accordingly, the Board need not further address the Veteran's assertions as to the remaining criteria for service connection, as the initial criterion has not been met. Absent such a threshold finding, there is no reasonable doubt to resolve in the Veteran's favor with respect to the high cholesterol issue; consequently, the claim must be denied. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 4.3 (2017). ORDER The petition to reopen the issue of entitlement to service connection for migraine headaches is denied. New and material evidence having been received, the issue of entitlement to service connection for cervical cancer is reopened. New and material evidence having been received, the claim for entitlement to service connection for hypertension is reopened. Service connection for hypercholesterolemia is denied. REMAND Further development is found needed prior to adjudication of the remaining claims on appeal. As an initial matter, the Board has found that new and material evidence has been received sufficient to reopen the issues of entitlement to service connection for a gynecological disability and hypertension, but concludes that having been reopened, additional development is required before the underlying issues may be adjudicated. When the Veteran's claims to reopen the issues were denied by the RO in the August 2010 rating decision, August 2013 Statement of the Case, and January 2014 Supplemental Statement of the Case, the bases for the denials were that new and material evidence had not been submitted. There is no indication that the underlying claims were considered on the merits on any of these occasions. Thus, while the issues have been reopened, the Board does not have jurisdiction to consider them until first reviewed by the AOJ. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran has not yet been provided with VA examinations pertaining to her present claims for service connection for a gynecological disability, hypertension, neck disability, right shoulder disability, and left shoulder disability. Given the circumstances in this case, the Board finds that such examinations must be provided in order to meet VA's duty to assist the Veteran in substantiating her claims. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 U.S.C. § 5103A(d)(2) (2012); 38 C.F.R.§ 3.159(c)(4)(i) (2017). As the Board is remanding these appeals for further development, the AOJ should take action to ensure the Veteran's complete VA treatment records are in the claims file, and contact the Veteran to determine whether there remain other relevant private treatment records that she wishes for VA to obtain on her behalf. Accordingly, the claims are REMANDED for the following action: 1. Obtain any and all of the Veteran's updated and otherwise outstanding VA treatment records and associate them with the claims file. All efforts to obtain such records must be fully documented and VA facilities must provide a negative response if no records are found. 2. Ask the Veteran to identify and provide a release form for any additional records of private treatment relating to her claims for service connection for a gynecological disability, hypertension, a neck disability, or left or right shoulder disabilities which she wants VA to obtain on her behalf. After securing any necessary written authorization from the Veteran, request the private records identified and associate them with the claims file. If any records cannot be obtained after reasonable efforts have been made, notify the appellant of the attempts made and allow her the opportunity to obtain the records. 3. Thereafter, schedule the Veteran for examinations with suitably qualified VA medical professionals to assess the nature and etiology of her claimed gynecological, hypertension, neck, and left and right shoulder disabilities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. The examiner must specifically note on the VA examination report whether the Veteran's VA claims file, to include a copy of this remand, and any electronic records, were reviewed in connection with this examination. Thereafter, the examiner(s) should address the following: Gynecological disability a. Provide a diagnosis for any and all gynecological disabilities present at any time during the relevant appeal period (October 2009 to present). The examiner should also specifically identify any diagnosis/diagnoses which led to the Veteran's vaginal hysterectomy and left oophorectomy, and confirm or rule out a diagnosis of cervical cancer. b. For any diagnosis identified above, is it at least as likely as not (50 percent or greater probability) that the disability arose during or is otherwise causally related to a period of the Veteran's active duty and/or active duty for training? In responding to this question, the examiner's attention is directed to service treatment records from a period of active duty noting low grade squamous intraepithelial lesion and chronic active cervicitis in March 2006 and dysplasia of the cervix in April 2006. Hypertension c. Is it at least as likely as not that the Veteran's hypertension was aggravated (permanently worsened beyond the normal progression of the disorder) during a period of active duty and/or active duty for training? Neck Disability d. Provide a diagnosis for any and all neck/cervical spine disabilities present at any time during the relevant appeal period (October 2009 to present). e. For any neck diagnosis identified above, is it at least as likely as not (50 percent or greater probability) that it arose during or is otherwise causally related to the Veteran's active military service? The examiner's attention is directed to active duty service treatment records from December 2005 and January 2006 documenting neck and shoulder pain and diagnosing spasmodic torticollis and neck strain potentially related to repetitive computer work. The Veteran has also reported to treatment providers and at the Board hearing that she fell during active duty in Kuwait in 2005, badly spraining her neck and shoulder. Shoulder Disabilities f. Provide a diagnosis for any and all left and/or right shoulder disabilities present at any time during the relevant appeal period (October 2009 to present). The examiner should address both musculoskeletal disorders and any potential neurological pain/disorder related to the Veteran's neck disability. g. For any left and/or right shoulder disability identified above, is it at least as likely as not (50 percent or greater probability) that it arose during or is otherwise causally related to the Veteran's active military service? The examiner's attention is directed to active duty service treatment records from December 2005 and January 2006 noting slight swelling and tenderness over the right trapezius and limited elevation of the shoulder and right trapezius spasm, with a diagnosis in December 2005 of spasmodic torticollis right neck likely due to strain at computer and in January 2006 of and right neck strain likely from repetitive computer work and upper body exercises. The term 'at least as likely as not' does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. For purposes of this analysis, "aggravation" is defined as a permanent worsening of the nonservice-connected disability beyond that due to the natural disease process. Temporary or intermittent flare-ups of symptoms of a preexisting condition alone do not constitute aggravation unless the underlying condition worsened beyond its natural progression. The examiner(s) should not limit their review of the record to the evidence highlighted by the Board in these instructions. The examiner must include in the examination report the rationale for any opinion expressed. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 4. Thereafter, review the requested medical opinions to ensure responsiveness and compliance with the directives of this remand; implement corrective procedures as needed. 5. After completing the above, conduct any additional development deemed necessary in light of the expanded record then readjudicate the Veteran's claims for entitlement to service connection for a gynecological disability, hypertension, a neck disability, right shoulder disability, and left shoulder disability. If the benefits sought on appeal remain denied, the Veteran and her representative must be furnished a Supplemental Statement of the Case and be given an opportunity to respond before the claims file is returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs