Citation Nr: 20005191 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 19-08 820 DATE: January 22, 2020 ORDER New and material evidence having been received, the claim for service connection for menstrual problems is reopened. REMANDED The issue of entitlement to service connection for the residuals status post hysterectomy, previously characterized as menstrual problems, is remanded. FINDING OF FACT Since the final June 2016 rating decision denying the Veteran’s petition to reopen the service connection claim for menstrual problems, new lay evidence has been submitted, which in conjunction with the prior evidence of record, is material because it relates to the previously unestablished in-service incurrence element, thereby raising a reasonable possibility of substantiating the claim. CONCLUSION OF LAW 1. The June 2016 rating decision denying the Veteran’s service connection claim for menstrual problems is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2019). 2. Following the June 2016 rating decision, new and material evidence has been received to reopen the service connection claim for menstrual problems. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156(a), 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1983 to November 1984. 1. Whether new and material evidence has been received to reopen the service connection claim for menstrual problems. Laws and Regulations Generally, “new” evidence is defined as existing evidence not previously submitted to agency decisions makers, while “material” evidence is defined as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. §§ 3.156(a). The evidence must not be cumulative or redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. Id. Irrespective of the Regional Office’s (RO’s) determination, the Board must independently assess whether new and material evidence has in fact been submitted in order to assume jurisdiction over the merits of the claim. See Jackson v. Principi, 265 F.3d 1366, 1369-70 (Fed. Cir. 2001). Analysis The Veteran first initiated a service connection claim for a “menstrual problem” in February 2010. In a January 2011 rating decision, the RO denied the claim, finding there was insufficient evidence of an in-service incurrence. She was notified of this decision and her right to appeal but did not initiate an appeal. No new and material evidence was received within one year of this decision. Subsequently, in February 2016, the Veteran renewed her service connection claim for a menstrual problem. In an April 2016 rating decision, the RO properly interpreted the claim as a petition to reopen the prior service connection claim for menstrual problems. The RO denied the petition, finding that while new medical evidence has been received it was not material because it did not relate to the previously unestablished in-service incurrence element. She was notified of this decision and her right to appeal but did not initiate an appeal. Instead, the Veteran submitted a service connection claim for a “menstrual condition” within the month. In a June 2016 rating decision, the RO interpreted the claim as a petition to reopen the prior service connection claim for menstrual problems. The RO denied the petitions once more, finding that while new medical evidence has been received it was not material because it did not relate to the previously unestablished in-service incurrence element. She was notified of this decision and her right to appeal but did not initiate an appeal. Although new VA treatment records were received within one year of the decision, they were not material because they did not relate to the previously unestablished in-service incurrence element nor otherwise raised a reasonable possibility of substantiating the claim. Further, while the Veteran submitted copies of select service treatment records (STRs) with highlighted sections which she believed were relevant to the claim within one year of the decision, they were not material because they were redundant of the evidence previously of record. Just prior to the expiration of the one-year appeal period, in June 2017, the Veteran submitted another service connection claim for a “menstrual cycle” disability related to a hysterectomy. In an August 2017, the RO properly interpreted the claim as a petition to reopen the prior service connection claim for menstrual problems. The RO denied the petition, finding that while new medical evidence has been received it was not material because it did not relate to the previously unestablished in-service incurrence element. She appealed this decision and it now before the Board. Since the June 2016 rating decision, new lay and medical evidence has been associated with the claims file. In pertinent part, an October 2018 Decision Review Officer Hearing Transcript has been added to the claims file. During the hearing, the Veteran testified that she began experiencing heavy menstrual cycle bleeding as well as muscle cramps following an injury during basic training when she fell from an obstacle course while climbing. A review of her service personnel records (SPRs) and STRs previously of record disclose that she began complaining of stomach issues in September 1983 during basic training and continued to complain of abdominal or lower quadrant pain thereafter. Based on the foregoing, the new lay evidence, in conjunction with the SPRs and STRs previously of record, relate to the unestablished in-service incurrence element. As such, the new lay evidence is material because it raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board finds that new and material evidence has been received to reopen the service connection claim for menstrual problems. REASONS FOR REMAND 1. The issue of entitlement to service connection for residuals status post hysterectomy, previously characterized as menstrual problems, is remanded. The Veteran contends her hysterectomy in July 1999 was related to the heavy menstrual bleeding and muscle cramps she experienced in-service. More specifically, she asserts the heavy menstrual bleeding and muscle cramps onset following an injury she sustained during boot training when she fell from an obstacle course while climbing. A review of her SPRs and STRs indicates she began complaining of stomach issues in September 1983, during basic training, and continued to complain of abdominal or lower quadrant pain intermittently thereafter. Among her STRs, a May 1984 Chronological Record of Medical Care noted an assessment that her complaint of abdominal pain on and off could be, among other possibilities, due to a muscle strain from physical training. Her post-separation medical records reveal the pre-operative diagnoses leading up to her hysterectomy included chronic pelvic pain, severe dysmenorrhea (severe menstrual cramps) and menorrhagia (heavy menstrual bleeding). Despite the foregoing, she has yet to be afforded a VA examination. As the McLendon elements necessitating a VA examination have been met, a remand is necessary to obtain one. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Contact the Veteran to determine if there are any relevant, outstanding private treatment records. If so, undertake all appropriate development necessary to obtain these records from each private treatment provider and/or facility identified by her. 2. Obtain all relevant, outstanding VA treatment records. 3. Once the first two requests have been completed, to the extent possible, schedule the Veteran for an examination with an appropriate medical professional to determine the nature and etiology of her claimed residuals status post hysterectomy. After reviewing the record, the examiner should: (a.) Opine was to whether it is at least as likely as not (50 percent probability or greater) the Veteran’s hysterectomy was caused by or is otherwise related to her active duty service and explain why. (b.) In rendering an opinion, the examiner should consider the Veteran’s relevant lay statements of record, to include her testimony during the October 2018 Decision Review Officer hearing that she began experiencing heavy menstrual bleeding and muscle cramps following an injury she sustained during boot training when she fell from an obstacle course while climbing. 4. Once each of the above requests have been completed, to the extent possible, readjudicate the appeal. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Suh, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.