Citation Nr: 19129003 Decision Date: 04/16/19 Archive Date: 04/15/19 DOCKET NO. 17-42 483 DATE: April 16, 2019 ORDER New and material evidence having been received, the Veteran’s claim for entitlement to service connection for a left shoulder strain (left shoulder disability) is reopened. Entitlement to a compensable rating for residual scarring due to left tubalectomy is denied. REMANDED Entitlement to service connection for hysterectomy is remanded. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, depression, and an anxiety disorder, is remanded. Entitlement to service connection for a left shoulder condition is remanded. FINDINGS OF FACT 1. In April 2004 rating decision, the RO denied service connection for a left shoulder condition. The Veteran did not appeal that decision and it became final. 2. Evidence added to the record since the April 2004 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of service connection for a left shoulder condition. 3. For the entire appeal period, the evidence shows that Veteran’s service-connected scar is stable and not painful. CONCLUSIONS OF LAW 1. New and material evidence has been received since the April 2004 rating decision denying entitlement to service connection for a left shoulder condition; the criteria for reopening this claim have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 2. The criteria for a compensable rating for scars have not been met. 38 U.S.C. §§ 1155; 5107; 38 C.F.R. §§ 4.118, Diagnostic Code Diagnostic Code 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy with confirmed service from June 1983 to August 2003. This matter is before the Board of Veterans’ Appeal (Board) on appeal from an October 2014 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. New Material Evidence 1. Whether new material evidence has been received in order to reopen a claim of entitlement to service connection for a left shoulder strain (left shoulder disability). VA may reopen a claim for service connection which has been previously and finally disallowed when new and material evidence has been presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this regard, “new evidence” means existing evidence not previously submitted to VA. “Material evidence” means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Taken in combination, 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). New evidence may be sufficient to reopen a claim if it can contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Thus, the Board must first determine whether new and material evidence has been submitted under 38 C.F.R. § 3.156(a) to have a claim reopened under 38 U.S.C. § 5108. Elkins v. West, 12 Vet. App. 209 (1999). Then the Board may proceed to evaluate the merits of the claim after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record. The RO initially denied the Veteran’s claim for service connection for a left shoulder strain due to the absence of evidence of current disability in April 2004. This denial of service connection became final, as the Veteran did not initiate an appeal of the RO’s rating decision, nor was any new and material evidence received within a year. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. The Veteran requested to reopen her left shoulder claim in December 2013, and the RO granted the reopening of the claim in the October 2014 rating decision but denied the underlying service connection claim. Although the RO reopened the claim, RO decisions are not binding on the Board and, consequently, the Board must decide whether new and material evidence has been received to reopen the Veteran’s claim. Jackson v. Principe, 265 F.3d 1366 (Fed. Cir. 2001) (holding that Board reopening is unlawful when new and material evidence has not been submitted). The Board must now determine whether new and material evidence has been submitted since the April 2004 rating decision sufficient for the reopening of the Veteran’s claim. To that end, the Veteran submitted her treatment records regarding the diagnosis of a shoulder condition. This evidence is new as it was not of record at the time of the previous final denial. The Board finds that the new evidence does raise a reasonable possibility of substantiating the Veteran’s claim. Again, the April 2004 rating decision denied the Veteran’s claim due the absence of a left shoulder disability. The new evidence establishes that the Veteran has a diagnosis of a left shoulder condition. This evidence raises a reasonable possibility of substantiating the Veteran’s claim. Therefore, the Board finds that new and material evidence is of record since the prior final denial of this claim in April 2004. Shade, 24 Vet. App. at 117. The claim of entitlement to service connection for a left shoulder condition is thus reopened. Increased Rating 2. Entitlement to a compensable rating for a residual scarring due to left tubalectomy. The Veteran seeks a compensable rating for her service-connected scar. The Veteran’s service-connected scar is rated under Diagnostic Code 7805 and has been assigned a noncompensable (0 percent) disability rating. Under Diagnostic Code 7805, any other scars, including linear scars, are to be rated based on any disabling effects and the appropriate diagnostic code for such effects. 38 C.F.R. § 4.118, Diagnostic Code 7805. Diagnostic Code 7804 assigns ratings for scars that are unstable or painful. This Diagnostic Code assigns a 10 percent rating for one or two qualifying scars, a 20 percent rating for three or four qualifying scars, and a 30 percent rating for five or more qualifying scars. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, 10 percent is added to the evaluation based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable. 38 C.F.R. § 4.118, Diagnostic Code 7804. A September 2014 VA examination report discussed the nature of the Veteran’s surgical scars related to her salpingectomy. The examiner noted that scar was linear, measured at 11 centimeters with no pain upon examination, and appeared well-healed. The scar was noted to be unstable. Based on the foregoing evidence, the Board determines that a compensable rating cannot be assigned under any of the diagnostic codes available for the Veteran’s service-connected scar. Diagnostic Code 7804 is most applicable, as it covers unstable or painful scars. As the evidence of record does not indicate that the Veteran’s scar is unstable or painful, a compensable rating is not warranted under this Code. Other Diagnostic Codes are not for application here. Notably, Diagnostic Code 7800 is specific to scars of the head, face, or neck, and Codes 7801 and 7802 cover scars that are nonlinear. As the Veteran’s scar is linear and not of her head, face, or neck, these Codes are not applicable. In sum, the Board concludes that the symptomatology noted in the medical and lay evidence has been adequately addressed by the current rating and that the Veteran’s service-connected scar does not meet any applicable rating criteria for a compensable rating. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to service connection for a hysterectomy is remanded. The Veteran is seeking service connection for a hysterectomy. Specifically, the Veteran contends that her hysterectomy is due to in-service ectopic pregnancies and laparoscopic salpingectomy. To this point, the Veteran has not been afforded a VA examination to determine the etiology of her claimed hysterectomy. Considering the Veteran’s numerous in-service treatment for reproductive issues, a VA examination addressing the nature and etiology of the Veteran’s hysterectomy is needed. 2. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, depression, and an anxiety disorder, is remanded. The Veteran contends that her claimed acquired psychiatric disability is related to her military service. The Veteran’s claim has been denied in part for failure to furnish a PTSD stressor. The Veteran was sent a stressor letter, but she noted that this letter went to an old address, and it does not appear that she was sent a new letter. Such should be accomplished on remand. Further, review of the Veteran’s treatment records reveals the absence of a confirmed diagnosis of PTSD but indicates that the Veteran has received treatment for depression and anxiety. The Veteran has not been afforded a VA examination to determine the etiology and nature of her claimed psychiatric disability. As such, the Veteran shall be afforded a VA examination to determine the etiology of her claimed psychiatric disabilities. 3. Entitlement to service connection for a left shoulder condition. The Veteran is seeking service connection for a left shoulder condition. The Veteran contends that her left shoulder condition began in-service and has progressively became worst over the years. To that end, the Veteran was afforded a September 2014 VA examination to determine the nature and etiology of her claimed left shoulder condition. The examiner opined that the Veteran’s left shoulder condition was less likely than not related to her military service. The examiner provided that the Veteran’s upper extremities were noted to be normal at the Veteran’s retirement physical. However, the Board finds the rationale provided by the September 2014 VA examiner as adequate because the VA examiner based her opinion solely on the absence of a shoulder condition at the Veteran’s retirement examination. This opinion is inadequate, especially so given the Veteran’s in-service treatment for shoulder pain shortly before her retirement. The examiner did not discuss the Veteran’s in-service treatment in her opinion, and she did not discuss any lay evidence from the Veteran. A new opinion is required. The matter is REMANDED for the following actions: 1. Provide the Veteran with a PTSD stressor letter. 2. Notify the Veteran that she may submit any medical records in support of her claims on appeal, or that she may provide VA with releases to obtain this evidence on her behalf. 3. Schedule the Veteran for appropriate the VA examination to determine the nature and possible relationship to service of her claimed hysterectomy. The evidence of record, to include a copy of this Remand, must be made available to the examiner and the examiner must indicate that the pertinent medical records and lay statements have been reviewed. Following a review of the record, the examiner must address the following: Has the Veteran undergone a hysterectomy and, if so, is it at least as likely as not that this procedure and its residuals are related to the Veteran’s active service, to include her in-service ectopic pregnancies? 4. Schedule the Veteran for appropriate the VA examination to determine the nature and possible relationship to service of her claimed psychiatric disorder. The evidence of record, to include a copy of this Remand, must be made available to the examiner and the examiner must indicate that the pertinent medical records and lay statements have been reviewed. Following a review of the record, the examiner must address the following: (a) Provide diagnoses for all current psychiatric disabilities, to include those noted during the appeal period. (b) If you find that the Veteran currently suffers from PTSD, please state whether it is at least as likely as not that this disorder is related to any confirmed in-service stressor. (c) If you find that the Veteran suffers from a psychiatric disorder other than PTSD, then state whether it is at least as likely as not that this disorder or disorders had their onset during or are otherwise related to the Veteran’s active service. A complete rationale is required for all opinions offered by the reviewing examiner. 5. Obtain an opinion as to whether the Veteran’s left shoulder condition is related to her active service. Whether an examination is needed prior to rendering this opinion is left to the discretion of the examiner. Regardless of whether an examination is performed, the examiner is to state whether it is at least as likely as not that the Veteran’s current left shoulder disability is related to her active service. The examiner must specifically note and discuss the Veteran’s in-service complaints of shoulder pain during her active service, as well as the lay statements of record regarding her history of shoulder pain both during and since service. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. R. Higgins, Associate Counsel