Citation Nr: 1817476 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 13-34 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for endometriosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from May 1975 to May 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Louisville, Kentucky, that continued a prior denial of service connection for endometriosis. Jurisdiction of this matter is currently with the RO located in Columbia, South Carolina. In November 2017, the Veteran testified at a video conference hearing over which the undersigned Veterans Law Judge presided. A transcript of that hearing has been associated with his claims file. The Veteran's claims file has been converted into a paperless claims file via the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. All records in such files have been considered by the Board in adjudicating this matter. FINDINGS OF FACT 1. Service connection for a stomach disorder with endometriosis was denied by the Board in an unappealed decision dated in July 1990. 2. Evidence received since the July 1990 Board decision denying service connection for a stomach disorder with endometriosis relates to an unestablished fact and raises a reasonable possibility of substantiating the claim. 3. Resolving all doubt in the Veteran's favor, endometriosis was first manifested during the Veteran's period of active service. CONCLUSIONS OF LAW 1. The Board's July 1990 decision that denied the claim of service connection for a stomach disorder with endometriosis is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017). 2. New and material evidence having been received, the claim of entitlement to service connection for endometriosis is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for entitlement to service connection for endometriosis are met. 38 U.S.C. §§ 1110, 1131, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken. However, given the results favorable to the Veteran, further development under the VCAA or other law would not result in a more favorable outcome or be of assistance to this inquiry. In the decision below, the Board reopens and grants the claim of service connection for endometriosis. The RO will be responsible for addressing any notice defect with respect to the rating and effective date elements when effectuating the award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Reopening Previously Denied Claims For Service Connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303 , 3.304 (2017). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2017). Because the July 1990 2008 Board decision was not appealed to the United States Court of Appeals for Veterans Claims (Court), it is final based on the evidence then of record. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104 (a), 3.160(d), 20.302 (2017). However, if new and material evidence is presented or secured with respect to the claim that has been disallowed, the Secretary shall reopen the claim and review its former disposition. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Under 38 C.F.R. § 3.156 (a), evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is evidence 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. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Veteran asserts that she has chronic ongoing endometriosis that was first manifested during her period of active service. During the November 2017 Board hearing, she testified that during active service, she was hospitalized with symptoms of pain and excessive vaginal bleeding that was not diagnosed at the time, but that was later determined to be the onset of endometriosis. She added that she has continued to experienced related symptoms ever since. Service connection for a stomach disorder with endometriosis was previously denied by the Board in July 1990. At the time of the Board decision, the evidence of record included the Veteran's available service treatment records, VA and private medical treatment records, and a transcript of a July 1989 RO hearing. The service treatment records had shown that in August 1975, the Veteran was treated for what was suspected to be cholecystitis, however, no stomach pathology was identified. The records also showed that the Veteran had been treated on multiple occasions for menstrual irregularity manifested by lower quadrant pain and excessive vaginal bleeding. A private medical record from J. W. S., M.D., dated in December 1987, had shown that the Veteran was said to have been treated since 1984 with recurrent pelvic inflammatory disease. A VA examination report dated in February 1988 had shown that the Veteran was diagnosed with endometriosis. While the Veteran's service history was reiterated, there was no opinion provided as to the etiology of the endometriosis. During the July 1989 RO hearing, the Veteran described the symptoms for which she was treated during service as set forth above. In the July 1990 decision, the Board weighed the evidence and concluded that the Veteran's complaints during service related to her menstrual difficulties were not indicative of endometriosis. Evidence added to the record since the final July 1990 Board decision includes additional statements from the Veteran, to include her November 2017 testimony; private medical records from Dr. S., from G. B. N., M.D., and from L. D., PA-C; and an additional VA examination report dated in November 2013. In this regard, in her November 2017 testimony, the Veteran reiterated that during active service, she was hospitalized with symptoms of pain and excessive vaginal bleeding that was not diagnosed at the time, but that was later determined to be endometriosis, and that she had continued symptoms ever since. Additional private medical records from Dr. S, dated in July 2010, shows that the Veteran continued to experience debilitating problems with pelvic pain controlled with medication, and that her amount of endometriosis was as bad as seen. Private medical records from Dr. N, also show ongoing treatment for symptoms associated with endometriosis. In a record dated in May 2012, Dr. N. indicated that the Veteran had severe endometriosis since being in the service, and that having reviewed her record, it was determined that on several occasions during service she had presented to sick call with classic symptoms of endometriosis, but was discharged with no diagnosis (December 31, 1975, November 23, 1977, and September 8, 1977). Dr. N. added that the Veteran had clear endometriosis in the past while in service, that was still her problem today. It had started in service and had become worse. Her service records were said to clearly link the start when she was on active duty. A VA examination report dated in November 2013 shows that the Veteran was diagnosed with endometriosis, with a date of diagnosis noted to be 1975. The VA examiner explained that the Veteran had been noted to have irregular bleeding in service, but no complaints of pain were documented. She was said to have been formally diagnosed with endometriosis by laparoscopy in 1986. The examiner added that she had visited Dr. S. 18 months earlier and examination had been normal at that time, therefore, it was less likely than not that her endometriosis had its onset in service. A private medical record from L. D., PA-C, dated in December 2013, shows, in pertinent part, that after a review of the Veteran's service and civilian medical records, her endometriosis was service connected as it was diagnosed in 1975 to 1978 while in service. The author of the opinion added that he was in agreement with the opinion of Dr. N. The Board finds that the additional medical opinions set forth above constitute new and material evidence, as they were not previously of record when the prior decision was made and address whether the Veteran's endometriosis was the result of active service. Accordingly, the claim of service connection for endometriosis is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). Service Connection Having reopened the Veteran's claim, the Board must now consider whether entitlement to service connection is warranted on the merits. In this regard, current endometriosis has been established. The Board has considered the November 2013 opinion of the VA examiner, however, finds it to be of limited probative value as it is inconsistent on its face. In one part of the opinion, the examiner diagnoses endometriosis with 1975 date of diagnosis, and in another part of the opinion concludes it was not manifested in service. Moreover, the VA examiner indicated that the Veteran had not had documented pain during service, while the service treatment records clearly show reported lower quadrant pain that accompanied the excessive bleeding. Additionally, the VA examiner did not address the opinion of Dr. N., that concluded that the Veteran had presented to sick call with classic symptoms of endometriosis. The Board finds probative the May 2012 opinion of Dr. N., along with the December 2013 letter from L. D., PA-C, as they appear to be based upon a complete review of the Veteran's entire history and supported by clear rationale. There is no opinion of record that specifically rebuts the opinions in support of the claim or otherwise diminishes their probative weight. Under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). In this case, the Board finds that, at the very least, a state of relative equipoise has been reached as to the etiology of the Veteran endometriosis. As such, service connection is warranted. ORDER New and material evidence having been received, the claim of entitlement to service connection for endometriosis is reopened. Service connection for endometriosis is granted. ____________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs