Citation Nr: 1817591	
Decision Date: 03/22/18    Archive Date: 04/03/18

DOCKET NO.  14-22 260	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Entitlement to an evaluation in excess of 20 percent for bilateral hearing loss for the period prior to July 31, 2014, and to an evaluation in excess of 30 percent for bilateral hearing loss thereafter.

2.  Entitlement to an evaluation in excess of 10 percent for calluses of the right foot.

3.  Entitlement to an evaluation in excess of 10 percent for calluses of the left foot.

4.  Whether new and material evidence has been received to reopen a claim for service connection for migraine headaches.

5.  Entitlement to service connection for migraine headaches, to include as secondary to service-connected hearing loss.

6.  Entitlement to service connection for the residuals of a hysterectomy.

7.  Entitlement to special monthly compensation due to loss of use of a creative organ.


REPRESENTATION

Appellant represented by:	New Jersey Department of Military and Veterans' Affairs


ATTORNEY FOR THE BOARD

B. Whitelaw, Associate Counsel


INTRODUCTION

The Veteran served honorably on active duty in the U.S. Navy from April 1983 to April 2003.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 and October 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.

The Veteran previously indicated she wished to attend a hearing before a member of the Board.  However, in a written statement from February 2018, the Veteran withdrew her request for a Board hearing.

The issues of entitlement to service connection for migraine headaches and the residuals of a hysterectomy and of entitlement to special monthly compensation due to loss of use of a creative organ are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  Prior to July 31, 2014, the Veteran's bilateral hearing loss manifested by average pure tone conduction thresholds of no worse than 58.75 decibels in the right ear and 105+ decibels in the left ear, and speech recognition scores using the Maryland CNC word list of 96 percent in the right ear and 0 percent in the left ear.

2.  Resolving all reasonable doubt in the Veteran's favor, the Veteran's right ear hearing loss was predominantly manifested by pure tone thresholds of 55 decibels to 60 decibels in the 1000, 2000, 3000, and 4000 Hz frequencies prior to July 31, 2014.

3.  For the period beginning July 31, 2014, the Veteran's bilateral hearing loss was manifested by average pure tone conduction thresholds at 1000, 2000, 3000, and 4000 Hz of no worse than 63 decibels in the right ear and 105+ decibels in the left ear, and speech recognition scores using the Maryland CNC word list of 76 percent in the right ear and 0 percent in the left ear.

4.  The Veteran's right foot calluses have not been manifested by more than moderate symptoms.

5.  The Veteran's left foot calluses have not been manifested by more than moderate symptoms.

6.  The claim for service connection for headaches was previously denied in a rating decision from June 2003.  The Veteran did not appeal the denial and no new evidence pertinent to the claim was received by VA within one year from the date the Veteran was informed of the June 2003 denial.

7.  Evidence has been received since the June 2003 denial that relates to a previously unestablished element of the claim for service connection for migraine headaches and raises a reasonable possibility of substantiating the claim.


CONCLUSIONS OF LAW

1.  For the entire period on appeal, the criteria for a 30 percent evaluation for bilateral hearing loss, and no higher, have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100 (2017).

2.  The criteria for an evaluation in excess of 10 percent for calluses of the right foot have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.27, 4.71a, Diagnostic Code (DC) 7899-5284 (2017).

3.  The criteria for an evaluation in excess of 10 percent for calluses of the left foot have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.27, 4.71a, Diagnostic Code (DC) 7899-5284 (2017).

4.  The July 2003 rating decisions denying service connection for migraine headaches is final.  38 U.S.C. §§ 7104, 7105, 7266 (2012); 38 C.F.R. §§ 20.302, 20.1100 (2017).

5.  Evidence received since the July 2003 rating decision denying service connection for migraine headaches is new and material and warrants a reopening of a claim for service connection for that disability  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).






REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Increased Evaluation - Legal Standard

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.

If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.  However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided.  38 C.F.R. § 4.14.

Where, as here, entitlement to service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal.  See 38 U.S.C. § 7104(a) (2012).  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


II.  Increased Evaluation - Hearing Loss

The Veteran's hearing loss disability is rated under diagnostic code 6100.  38 C.F.R. §§ 4.85, 4.86, DC 6100.  Pursuant to this diagnostic code, hearing impairment evaluations are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmen v. Principi, 3 Vet. App. 345, 349 (1992).  The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment.  Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in both ears.  See 38 C.F.R. § 4.85.

When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral.  38 C.F.R. § 4.86(a).  Additionally, when the pure tone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, Table VI or Table VIa is to be used, whichever results in the higher numeral.  Thereafter, that numeral will be elevated to the next higher numeral.  38 C.F.R. § 4.86(b).

The Veteran has largely contended that her hearing loss warrants a higher evaluation due to the problems it causes with her ability to hear and in particular her ability to communicate over the phone and while at her workplace.  In a March 2013 statement, the Veteran indicated that she had total hearing loss in her left ear and that her hearing in her right ear had progressively been getting worse.  The Veteran also submitted a statement from a coworker in which the Veteran's colleague confirmed that the Veteran's hearing had been getting worse.  This coworker stated that the she had to take calls at work for the Veteran because the Veteran could not understand a customer or that she had to at times attend to the Veteran's customers in person because the Veteran could not hear the customer clearly.  

The Veteran and her coworker are competent to describe the personally observable symptoms relating to the Veteran's difficulties with hearing.  However, there is no evidence that either possesses the medical knowledge or training to report the severity of the Veteran's hearing loss in the clinical terms contemplated by the rating criteria for this disability.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  As such, the more probative evidence for evaluating the severity of the Veteran's hearing loss is the competent clinical evidence and audiological examination results that appear in the record.

An audiological examination conducted at a VA facility in January 2013 did not include results of word recognition testing using the Maryland CNC word list or include pure tone evaluation results for the left ear.  However, the Veteran's right ear was found to have the following hearing thresholds:


HERTZ

500
1000
2000
3000
4000
RIGHT
45
55
60
60
60

The average threshold from 1000 to 4000 Hz was therefore 58.75 decibels in the Veteran's right ear at that time.

The Veteran also attended a VA audiological medical examination in connection with her claim in April 2013.  At that time, she had speech discrimination scores using the Maryland CNC word list of 0 percent in her left ear and 96 percent in her right ear.  Pure tone thresholds were as follows:



HERTZ

500
1000
2000
3000
4000
RIGHT
45
50
60
55
55
LEFT
70
105+
105+
105+
105+

Accordingly, the Veteran had an average threshold in the right ear for VA purposes of 55 decibels and 105+ decibels in the left ear.  

The Veteran attended an additional audiological evaluation at a VA facility with a treating audiologist in April 2014.  Like the examination from January 2013, this examination report does not contain pure tone thresholds for the left ear and lacks speech discrimination scores for either ear using the Maryland CNC word list.  However, right ear pure tone thresholds were reported as:



HERTZ

500
1000
2000
3000
4000
RIGHT
50
55
60
60
60

These results reflect an average threshold of 58.75 decibels in the right ear, when averaging 1000 Hz through 4000 Hz.

The Veteran was afforded an additional compensation and pension evaluation in July 2014.  Speech discrimination scores using the Maryland CNC word list were noted to be 0 percent in the left ear and 94 percent in the right ear.  Pure tone thresholds were found to be as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
45
55
55
60
65
LEFT
70
105+
105+
105+
105+

Accordingly, the Veteran had an average threshold of 58.75 decibels in the right ear and 105+ in the left ear.

The Veteran subsequently attended an additional private audiological examination in April 2016 and an additional VA-provided evaluation in June 2016.  At the private examination, the Veteran's speech discrimination score using the Maryland CNC word list was 80 percent in the right ear.  Audiometric pure tone thresholds were reported as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
60
60
55
60
60
LEFT
90
100
100
100
95

These results reflect an average for VA purposes of 58.75 decibels in the right ear and 98.75 in the left ear.

At the June 2016 VA audiological examination, the Veteran's pure tone thresholds were as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
55
60
65
60
65
LEFT
70
75
CNT
CNT
CNT

"CNT" (or could not test) was reported in higher frequencies for the left ear due to the profound hearing loss the Veteran had in that ear.  However, the right ear pure tone thresholds averaged to 63 decibels.  Similarly, speech discrimination could not be tested in the left ear due to the Veteran's hearing loss and the Veteran had 76 percent speech discrimination in the right ear using the Maryland CNC word list.

Using only Table VI, the Board finds that an evaluation in excess of 20 percent for the period prior to July 31, 2014, and in excess of 30 percent thereafter is not warranted.  Using only that chart, the Veteran's April 2013 audiological examination results correspond to Roman numeral I in the right ear and Roman numeral XI in the left ear.  Considering those Roman numerals, Table VII therefore instructs a rater to assign a 10 percent evaluation for this level of hearing loss.  Likewise, using only Table VI, the results of the July 2014 VA audiological examination correspond to Roman numeral II in the right ear and Roman numeral XI in the left ear, which is assigned a 20 percent evaluation using Table VII.

Assuming the Veteran's left ear speech recognition was between 0 and 34 percent, as it had been at every other audiological examination of record, the Veteran's private audiological examination findings from April 2016 would correspond to Roman numeral IV in the right ear and Roman numeral XI in the left ear, which results in a 30 percent evaluation using Table VII.  Finally, the June 2016 VA audiological examination results also correspond to a right ear Roman numeral of IV and a left ear Roman numeral of XI using only Table VI.

Notwithstanding these findings, 38 C.F.R. § 4.86 instructs a rater to consider Table VIa in assigning a disability evaluation for hearing loss when there is an exceptional pattern of hearing impairment.  Because the Veteran's pure tone thresholds have never been simultaneously measured to be 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz, 38 C.F.R. § 4.86(b) is not applicable.  However, subsection (a) of that regulation provides that, when the pure tone threshold at 1000, 2000, 3000, and 4000 Hz is 55 decibels or more, the rater must determine the appropriate Roman numeral designation for hearing impairment by assigning the higher Roman numeral from either Table VI or Table VIa.  

With the exception of the April 2013 VA compensation and pension examination, the Veteran has had thresholds of 55 decibels or more in all of the frequencies identified in 38 C.F.R. § 4.86(a) at each of the audiological examinations she has attended.  As noted above, the Veteran had thresholds of at least 55 decibels at 2000, 3000, and 4000 Hz at the April 2013 VA audiological evaluation, but she was found to have a threshold of only 50 decibels at the 1000 Hz frequency.  As such, the criteria for an "exceptional pattern of hearing impairment" are not met when viewing those examination results in isolation.  However, the Board finds it notable that the Veteran did have an exceptional pattern of hearing loss at a treating VA audiological examination conducted only three months before that compensation and pension evaluation.  Using Table VIa, the Veteran's pure tone threshold average from that January 2013 examination corresponds to Roman numeral IV.  Similarly, at an audiological evaluation conducted in April 2014 for treatment purposes, the Veteran's clinical findings also satisfied the criteria for an exceptional pattern of hearing impairment, and the 58.75 decibel average at the 1000 through 4000 Hz frequencies that was measured at that examination also corresponds to Roman numeral IV using Table VIa.  At each of the remaining audiological examinations of record, the Veteran's average pure tone threshold in her right ear corresponded to a Roman numeral IV using Table VIa.  

The Board recognizes that the Veteran's April 2013 examination findings for her right ear were 5 decibels shy of the 55 decibel threshold at the 1000 Hz frequency to be considered an exceptional pattern of hearing loss.  However, at an evaluation only a few months prior, the Veteran's right ear hearing loss did surpass that threshold.  Similarly, at an evaluation from April 2014 and at every subsequent audiological examination, the Veteran had pure tone thresholds in her right ear of 55 decibels or greater at 1000, 2000, 3000, and 4000 Hz.  Resolving all reasonable doubt in the Veteran's favor, the Board therefore finds that the Veteran's hearing loss in the right ear for the entire period on appeal more closely approximates an exceptional pattern of hearing loss.  These results almost uniformly correspond to Roman numeral IV in the right ear.  The findings at each of the audiological examinations of the Veteran's left ear also correspond to Roman numeral XI.  Pursuant to Table VII, the Board therefore finds that the criteria for a 30 percent evaluation, and no higher, have been met for the entire period on appeal.

III.  Increased Evaluation - Foot Calluses

The Veteran also seeks an increase in the evaluation that has been assigned to her right and left foot calluses.  The Veteran has primarily contended that the most significant symptom attributed to these disabilities is pain that is exacerbated with prolonged use.  For instance, in her November 2014 notice of disagreement, the Veteran indicated that daily walking longer than a few minutes caused foot pain and the Veteran again reported ongoing foot pain at a January 2015 VA medical examination.  At that time, she indicated that after 20 minutes on her feet, she experienced arch pain and pain at the right fifth metatarsal base.  

As noted above, the Veteran is competent to report the observable symptoms of pain in her feet, including after use.  The Board also has no reason to doubt her credibility and finds that her lay reports of her foot symptoms are entitled to some degree of probative weight.  However, the Board must consider this evidence in light of the entire medical record and weigh it against the other competent, credible, and probative evidence of record.

To evaluate the Veteran's claim, VA afforded the Veteran a podiatric examination in October 2014.  The clinician who completed this evaluation noted that the Veteran reported sharp pain present in the calluses after exercise and long walks, after which she had painful ambulation and needed to put her feet up to achieve pain relief.  The examiner diagnosed the Veteran with bilateral calluses.  Upon examination, the Veteran was found to have mild tenderness upon palpation of hyperkeratotic lesions in the dorsum of the bilateral fifth toe, the medial aspect of the bilateral hallux, and the lateral/plantar aspect of the fifth metatarsophalangeal joint on the right.  However, the examiner indicated that the Veteran did not have any scars in her feet.

The Veteran attended an additional VA medical examination in January 2016 to determine the severity of her calluses.  The examiner reported identical symptoms to those stated in the October 2014 examination report in addition to identical clinical findings.  Ultimately, the examiner characterized the severity of the Veteran's calluses as "mild."  Although the record indicates the Veteran occasionally received podiatric treatment at VA medical centers, the examination reports for those clinical visits do not contain any evidence that the Veteran exhibited signs of any scars in her feet attributable to her calluses.

The Veteran's calluses have been evaluated under Diagnostic Code 7899-7804.  Hyphenated Codes are used when a rating under one Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2017).  The Veteran's specific disability is not listed in the Rating Schedule, and the AOJ assigned Diagnostic Code 7899 pursuant to 38 C.F.R. § 4.27, which provides that unlisted disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and "99."  See 38 C.F.R. § 4.20 (2017).  The AOJ determined that the most closely analogous Diagnostic Code was 7804 for unstable or painful scars.

Pursuant to DC 7804, a 10 percent evaluation is assigned with one or two scars that are painful or unstable.  A 20 percent evaluation is assigned with a showing of three or four scars that are unstable or painful.  Finally, the criteria for a 30 percent evaluation are met when the evidence demonstrates the presence of five or more scars that are unstable or painful.  38 C.F.R. § 4.118 (2017).

Although the AOJ determined that Code 7804 was most appropriate in evaluating the Veteran's claims, the Board is not bound by that determination.  When the regulations "do not provide diagnostic codes for specific disorders, it is necessary for the VA to evaluate those conditions under codes for similar disorders or codes that provide a general description that may encompass many ailments."  Butts. v. Brown, 5 Vet App. 532, 538 (1993) (quoting Proscelle v. Derwinski, 2 Vet. App. 629 (1992)).

Here, the Board finds that the more appropriate DC to evaluate the Veteran's bilateral calluses of the foot is 5284.  That Code is used to evaluate other injuries of the foot and assigns a 10 percent evaluation for moderate injuries, a 20 percent evaluation for moderately severe injuries, and a 30 percent evaluation with a showing of severe injuries.  A note to that Code also instructs that when the evidence shows the actual loss of use of the foot, a 40 percent evaluation is appropriate.  38 C.F.R. § 4.71a.

Although the Veteran does have skin-related abnormalities manifested by calluses in areas of each of her feet, there is no probative evidence of record that indicates that the Veteran has had any scars in her feet, to include due to treatment for her calluses.  Moreover, by its nature and its use of the term "other," the Board finds that Code 5284 more appropriately encompasses a wide range of foot disorders that are not specifically enumerated in Codes assigned for other disabilities.  Its criteria also take a more holistic view of the potential symptoms caused by calluses of the feet by assigning an evaluation in accordance with the overall severity of a foot disability.  As such, the Board finds that it is more appropriate to use Code 5284 to evaluate the Veteran's calluses.

Here, the Board ultimately finds that the preponderance of the probative, competent, and credible evidence of record indicates that the Veteran's calluses in each foot have been no more than "moderate" in severity.  The Board acknowledges the fact that the Veteran has foot pain as well as the increased pain she reports with extended standing or exercise.  However, the clinical findings noted in the Veteran's VA examination reports are remarkably consistent in characterizing the Veteran's abnormalities as "mild" or "minimal," and her VA treatment notes do not contain evidence of even moderately severe callus-related abnormalities.  On the contrary, the VA clinicians who evaluated the Veteran in October 2014 reported that the Veteran had only "mild" tenderness upon palpation of her hyperkeratotic lesions.  At her January 2016 VA medical evaluation, the examining podiatrist reported that the Veteran's hyperkeratotic lesions were "minimal" and again indicated that the Veteran's calluses were only mild in severity.  

The Board finds this evidence to be highly probative in determining the degree of severity of the Veteran's bilateral calluses.  This clinician is also competent to provide an opinion on complex medical questions and the Board finds no reason to doubt the credibility of his statements.  Given the consistency in the findings between October 2014 and January 2016, the Board finds that the preponderance of evidence indicates that the Veteran's calluses have been no more than moderate in nature for the entire appellate period. 

The Board also acknowledges that the Veteran has been granted service connection for pes planus and hallux valgus and assigned a 30 percent evaluation for pes planus and a noncompensable rating for hallux valgus.  However the rule against pyramiding prevents the Board from evaluating the symptoms attributable to those disabilities in assigning an evaluation for the Veteran's calluses.  The Board has also considered whether a separate compensable evaluation is warranted under DC 5277 (weak foot), DC 5278 (claw foot), DC 5279 (Morton's disease), DC 5281 (hallux rigidus), DC 5282 (hammer toe), and 5283 (malunion or nonunion of the tarsal or metatarsal bones).  However, the probative evidence of record does not include any diagnosis of claw or weak foot, hallux rigidus, malunion or nonunion of any bone of the foot, or hammer toe.  As such, the Board does not find that a separate compensable rating for those DCs is warranted. 

Ultimately, the criteria for an evaluation in excess of 10 percent for calluses of either foot have not been met.  As the preponderance of evidence is against the Veteran's claim, it must be denied.

IV.  VA's Duties to Notify and Assist

Upon receipt of a complete application, VA has statutory duties to notify and assist claimants in substantiating a claim for VA benefits.  See, e.g., 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017).  Here, there have been no contentions that VA has failed to provide proper notice.

VA also has a duty to assist a veteran in the development of the claim.  To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (2017).  The Board finds that VA has satisfied its duty to assist by acquiring service records as well as relevant records of VA treatment.  These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issue before the Board.  

VA also attempted to satisfy its duty to assist by affording the Veteran several VA medical examinations, including in April 2013, July 2014, October 2014, January 2016, and June 2016.  Taken together, the Board is satisfied that these VA examinations contain a sufficient and adequate history of the Veteran's disabilities and adequately describe the severity and nature of the Veteran's disabilities.  See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008).  As such, the Board finds that VA has satisfied its duties to notify and assist the Veteran in the development of her claim  

V.  New and Material Evidence 

The Veteran is also seeking to reopen a previously denied claim of service connection for migraine headaches.  In general, decisions of the agency of original jurisdiction or the Board that are not appealed in the prescribed time period are final.  See, e.g., 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2017).  The exception to this rule is set forth at 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.  See Knightly v. Brown, 6 Vet. App. 200 (1994).  In its determination of whether new and material evidence has been submitted, the Board must look to the evidence submitted since the last final denial irrespective of the basis for that denial.  See Evans v. Brown, 9 Vet. App. 273, 285 (1996).

New evidence means existing evidence not previously submitted to 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) (2017).

In determining whether evidence is new and material, the credibility of the evidence is presumed.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992).  The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim.  See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010) (stating that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim is a component of the question of what is new and material evidence, rather than a separate determination).  Additionally, the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening.  Id.  Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim.  Id.

At the time of the prior denial, VA found that the Veteran had a history of migraine headaches, but indicated that the Veteran had denied headaches at a VA medical examination and ultimately did not have a current disability of migraine headaches.  No pertinent evidence was received within a year of the Veteran's notification of this decision and she did not appeal that denial.  It is therefore final.

However, since that time, the Veteran submitted a statement in May 2014 suggesting that she continues to experience migraine headaches between three and four times per year.  In a statement from December 2013, the Veteran also indicated that her hearing loss had deteriorated to the point that she would have to close her eyes and concentrate hard on understanding others when she was being spoken to.  She indicated that this intense concentration also caused headaches.  The Veteran is competent to report on the observable symptoms of headaches.  Her statements are also new evidence of symptoms that may be attributable to a current headache disability.  As they were not considered at the time of the prior denial and relate to an unestablished fact necessary to substantiate her claim, the Board finds that they represent new and material evidence sufficient to reopen her claim for service connection for migraine headaches.


ORDER

Entitlement to an evaluation of 30 percent for bilateral hearing loss for the period prior to July 31, 2014, and no higher, is granted.

Entitlement to an evaluation in excess of 30 percent for bilateral hearing loss for the period beginning July 31, 2014, is denied.

Entitlement to an evaluation in excess of 10 percent for right foot calluses is denied.

Entitlement to an evaluation in excess of 10 percent for left foot calluses is denied.

The claim for service connection for migraine headaches is reopened; the appeal is granted to this extent only.


REMAND

Although the Board sincerely regrets the additional delay, it must remand the claims for entitlement to service connection for the residuals of a hysterectomy and migraine headaches and the claim for special monthly compensation due to loss of use of a creative organ.

Upon receipt of a complete application, VA has statutory duties to notify and assist claimants in substantiating a claim for VA benefits.  See, e.g., 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017).  These duties may include providing a claimant with a medical examination in certain circumstances.  Specifically, VA must provide such an evaluation when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the claimant's service or with another service-connected disability, and (4) insufficient competent medical evidence on file for VA to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Here, the Veteran has not yet been provided a VA medical examination with respect to her claims of service connection.  The evidence also clearly demonstrates that she underwent a hysterectomy.  A review of the service treatment records uncovers numerous instances of complaints of menstrual abnormalities.  Service treatment records also include diagnoses of menorrhagia and a differential diagnosis of pelvic adhesions from April 1999.  Given the possibility that these in-service menstrual or genitourinary abnormalities ultimately led to the need for a hysterectomy, the Board finds that the Veteran should be afforded a VA medical evaluation pursuant to McLendon.

The record also contains numerous competent statements that the Veteran experiences ongoing symptoms of migraine headaches, as noted above.  Similarly, the Veteran's service treatment records contain numerous references to headache-related symptoms, including in January 1997, October 1999, and February 2000.  The Veteran has also implied that she experiences episodes of headaches due to her service-connected bilateral hearing loss.  Accordingly, the Board finds that a VA medical examination should be scheduled to determine the nature and etiology of any headache disorder and to provide insight into any possible relationship between a current headache disorder, active duty service, or the Veteran's service-connected hearing loss.

As the Veteran's claim for special monthly compensation is predicated on the outcome of her service connection claim for the residuals of a hysterectomy, the Board finds that the Veteran's claim for such compensation is inextricably intertwined with the service connection claim.  Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered).

Accordingly, the case is REMANDED for the following action:

1.  Obtain any outstanding VA treatment records and associate them with the Veteran's claims file.

2.  Thereafter, schedule the Veteran for a medical examination with an appropriate medical professional to determine the nature and etiology of any headache-related disorder.  The examiner is asked to review the entire claims file and conduct any tests or studies deemed appropriate.  After taking a complete medical history from the Veteran and personally examining her, please provide an opinion and complete rationale addressing the following items:

a.  Is it at least as likely as not (50 percent probability or greater) that any current headache disability arose in or is otherwise etiologically related to service?

b.  Is it at least as likely as not (50 percent probability or grater) that any current headache disability is proximately due to any service-connected disability, to include the Veteran's hearing loss?

c.  Is it at least as likely as not (50 percent probability or greater) that any current headache disability has been aggravated by (worsened in severity beyond the natural progression of the disability) a service-connected disability, to include the Veteran's hearing loss.

3.  Contemporaneously with directive two, schedule the Veteran for a medical examination with an appropriate medical professional to determine the cause of the Veteran's hysterectomy.  The examiner should review the entire claims file and conduct all tests or studies deemed necessary.

After taking a complete medical history of the Veteran and personally examining her, the examiner is asked to provide an opinion and complete rational regarding whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hysterectomy was the result of any gynecological disorder that arose in or was caused by active duty service.  

4.  Thereafter, ensure compliance with the directives above and conduct any other development deemed necessary or raised by the record.

5.  Finally, readjudicate the Veteran's claims.  If any claim is not granted, provide the Veteran and her representative a Supplemental Statement of the Case and allow them an appropriate amount of time to respond before returning the case to the Board for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the matter or 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).




______________________________________________
M. TENNER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs