Citation Nr: 20006709 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 19-07 553 DATE: January 27, 2020 ORDER New and material evidence having been submitted, the claim of service connection for adenomyosis is reopened. Service connection for adenomyosis is granted. Service connection for the residuals of a myomectomy is granted. REMANDED Service connection for an enlarged uterus is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for adenomyosis was denied in a February 2016 rating decision on the basis that the evidence failed to establish an in-service injury or illness or a nexus to service. She was notified of this decision, did not timely disagree with it or submit new and material evidence within one year of it, and it became final. 2. Evidence received since the February 2016 rating decision raises a substantial possibility of substantiating the claim of service connection for adenomyosis. 3. The probative evidence of record is at least in equipoise as to whether the Veteran’s adenomyosis is a result of service or etiologically related to service. 4. The probative evidence of record is at least in equipoise as to whether the Veteran’s residuals of a myomectomy are a result of service or etiologically related to service. CONCLUSIONS OF LAW 1. The February 2016 decision is final with regard to the issue of service connection for adenomyosis. New and material evidence sufficient to reopen the claim of service connection for adenomyosis has been received. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2018). 2. With resolution of reasonable doubt in the Veteran’s favor, the criteria for a grant of service connection for adenomyosis have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2018). 3. With resolution of reasonable doubt in the Veteran’s favor, the criteria for a grant of service connection for residuals of a myomectomy have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from February 2007 to December 2012. This matter is on appeal from an October 2017 rating decision. The Board notes that, in the October 2017 rating decision, the Agency of Original Jurisdiction (AOJ) granted the Veteran’s request to reopen her claim for service connection for adenomyosis and then denied it on the merits. The Board, however, must decide initially whether evidence to reopen a claim has been received without deference to any AOJ decision concerning reopening. See Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). Accordingly, the issue of reopening is reflected on the title page. 1. Adenomyosis – New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. 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 is neither cumulative nor redundant of evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). However, evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343, 1347 (Fed. Cir. 2000). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is generally “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Until the Veteran meets her threshold burden of submitting new and material evidence sufficient to reopen her claim of entitlement to service connection, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). The Veteran was denied service connection for adenomyosis in a February 2016 rating decision. She did not submit a Notice of Disagreement or submit new and material evidence within one year of the February 2016 rating decision. Therefore, the February 2016 rating decision is final. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 20.302, 20.1103. The basis for the February 2016 denial was a lack of evidence of an in-service injury or illness or a nexus to service. The question is thus whether the Veteran has submitted or VA has otherwise received evidence that was not before the adjudicator in February 2016, that is neither redundant nor cumulative, and that raises a reasonable possibility of substantiating a claim that the Veteran currently has adenomyosis as a result of active duty service. The evidence that was of record at the time of the February 2016 rating decision included the Veteran’s service treatment and personnel records, VA treatment records, and private treatment records. Since the February 2016 rating decision, the Veteran has submitted a February 2018 medical opinion by her private treatment provider and an April 2018 medical opinion by her VA medical provider, both of whom opined that her adenomyosis was present during her active duty service. As the record now contains more evidence pertinent to the issue of an in-service injury or illness and a nexus to service than it did in February 2016, the Board finds that new and material evidence has been received which pertains to previously unestablished facts necessary to support the claim. As this evidence raises a reasonable possibility of substantiating the claim, satisfying the criteria of 38 C.F.R. § 3.156(a) for new and material evidence, the claim is reopened. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Adenomyosis – Service Connection The Veteran contends that she has adenomyosis that is etiologically related to her active duty service. The Veteran’s service treatment records contain diagnoses of bacterial vaginitis in September 2007, bacterial vaginosis in May 2008, vaginitis candida albicans in July 2008, and bacterial vaginosis a few days later in July 2008. A March 2010 pap test noted “rare atypical squamous cells of undetermined significance” and a “shift in vaginal flora consistent with bacterial vaginosis.” In a report of medical history at the time of her August 2012 separation examination, the Veteran reported frequent painful menses and that menstrual pattern had become longer and more painful since deployment. During a February 2013 VA treatment appointment, the Veteran reported irregular menstrual bleeding that only occurred when traveling to Afghanistan and back. A March 2013 pap test was normal and a pelvic ultrasound found nothing requiring immediate attention. The Veteran was afforded a VA gynecological examination in July 2013. The examiner diagnosed menorrhagia and dysmenorrhagia. The Veteran reported that her menstrual cycle became longer during active duty service and was frequently severely painful. The examiner noted no history of uterine prolapse, uterine fibroids, or enlargement of the uterus. An August 2015 VA pelvic MRI noted a fibroid uterus with “many submucosal fibroids indenting into the endometrium” and “findings compatible with generalized uterine adenomyosis.” An August 2016 VA pelvic MRI again noted “numerous fibroids” and “findings compatible with generalized uterine adenomyosis.” A private treatment provider performed an exploratory laparotomy, myomectomy, chromopertubation, saline-infused sonogram, and intraoperative ultrasound on the Veteran in August 2016. Examination under anesthesia revealed a globular enlarged uterus, anteverted, with no palpable adnexal masses, two subcentimeter subserosal fibroids that were removed, and suspected adenomyosis “based on globular appearance and feel of uterus as well as heterogeneous appearance on intraoperative ultrasound.” In a July 2017 statement, the Veteran reported that her menstrual symptoms had their onset in 2009 and contended that, if the correct tests had been performed at that time, her fibroids and adenomyosis might have been discovered earlier. The Veteran was afforded an additional VA gynecological examination in October 2017. With regard to adenomyosis, the examiner found “no objective evidences (sic) to support a current diagnosis for adenomyosis” and opined that, even if there were, the causes of adenomyosis were “congenital anomalies, childbirth or trauma to the uterine wall,” that “[s]evere menstrual periods are symptoms of a condition,” and that “there are no medical literature (sic) that bacterial vaginosis can cause adenomyosis.” The Board notes that there was objective evidence of adenomyosis in the form of the August 2015 and August 2016 MRI findings and the August 2016 operative report. A medical opinion based on an inaccurate factual premise has limited, if any, probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Board also notes that this rationale is not responsive to the Veteran’s contention, which is that her severe menstrual periods were symptoms of a condition that went undiagnosed or misdiagnosed during active duty service. This rationale is therefore of limited probative value with regard to the issue before the Board. The Veteran has submitted a February 2018 medical opinion by her private treatment provider, who opined that it is “highly (>50%) likely these fibroids and adenomyosis evolved over a period of years and were present prior to 2012.” The Veteran has also submitted an April 2018 medical opinion by her VA treatment provider, who opined that the Veteran’s “current medical condition,” including fibroids and uterine adenomyosis, was “present during the time of military service.” The medical evidence of record includes multiple findings of adenomyosis. There are three medical opinions of record, a VA examiner’s opinion that is unfavorable to the Veteran’s claim and VA and private treatment providers’ opinions that are favorable. The VA examiner’s opinion provided a rationale based on inaccurate facts that did not address the Veteran’s contentions. The VA treatment provider’s opinion contained no rationale. The private treatment provider’s opinion contained a rationale that her adenomyosis had evolved over a period of years and was therefore present during active duty service. In light of the totality of the circumstances, and after resolving all reasonable doubt in the Veteran’s favor, the evidence of record supports a finding that it is at least as likely as not that the Veteran’s adenomyosis is etiologically related to her active duty service. Accordingly, the Board finds that granting service connection for adenomyosis is the decision that is the most consistent with VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. § 3.303(a). 3. Residuals of a Myomectomy The Veteran contends that her myomectomy was etiologically related to her active duty service. The Board has discussed the Veteran’s gynecological treatment history, including her August 2016 myomectomy to remove fibroids, in detail above. With regard to the Veteran’s myomectomy, the October 2017 VA examiner found that “an USG done in 2013 after her discharge was negative for any fibroids meaning it was not incurred or caused by service” and that “[b]acterial vaginosis has not been a known risk factor for development of uterine fibroids.” The Veteran has submitted a February 2018 medical opinion by her private treatment provider, who opined that it is “highly (>50%) likely these fibroids and adenomyosis evolved over a period of years and were present prior to 2012.” The Veteran has also submitted an April 2018 medical opinion by her VA treatment provider, who opined that the Veteran’s “current medical condition,” including fibroids and uterine adenomyosis, was “present during the time of military service.” The medical evidence of record includes the operative report of a myomectomy to remove fibroids. There are three medical opinions of record, a VA examiner’s opinion that is unfavorable to the Veteran’s claim and VA and private treatment providers’ opinions that are favorable. The VA examiner’s opinion provided a rationale that fibroids must not have been present during active duty service because 2013 ultrasonography was “negative for any fibroids.” The VA treatment provider’s opinion contained no rationale. The private treatment provider’s opinion contained a rationale that her fibroids had evolved over a period of years and were therefore present during active duty service. The Board notes that the March 2013 pelvic ultrasound did not say whether there were any fibroids or not, merely that there was nothing requiring immediate attention. This is not inconsistent with the private treatment provider’s rationale. The Board finds that the evidence is in equipoise. In light of the totality of the circumstances, and after resolving all reasonable doubt in the Veteran’s favor, the evidence of record supports a finding that it is at least as likely as not that the Veteran’s residuals of a myomectomy to remove fibroids are etiologically related to her active duty service. Accordingly, the Board finds that granting service connection for residuals of a myomectomy is the decision that is the most consistent with VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. § 3.303(a). REASONS FOR REMAND 1. Service connection for an enlarged uterus is remanded. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). With regard to an enlarged uterus, the October 2017 VA examiner opined that there was “no objective evidences (sic) available to support a current diagnosis of an enlarged uterus at this time.” The examiner further opined that an enlarged uterus “is not caused by bacterial vaginosis or severe menstrual pain” and that enlargement of the uterus “follows a totally different pathophysiology but may have symptoms of severe menstrual periods.” The Board notes that the August 2016 operative note specifically states that “[e]xam under anesthesia reveals globular enlarged uterus, anteverted, no palpable adnexal masses.” As stated above, a medical opinion based on an inaccurate factual premise has limited, if any, probative value. Reonal, 5 Vet. App. at 461. The Board also notes that this rationale is not responsive to the Veteran’s contention, which is that her severe menstrual periods were symptoms of a condition that went undiagnosed or misdiagnosed during active duty service. In addition, the Veteran contended in her May 2018 Notice of Disagreement (NOD) that her enlarged uterus was caused by her adenomyosis, which is a contention no VA examiner has addressed. It is also not clear the Veteran’s enlarged uterus is a disability distinct from her adenomyosis and residuals of a myomectomy, which are now service-connected, or whether it is a symptom of one of those disabilities. For all of these reasons, a remand is warranted to obtain an additional medical opinion. The matters are REMANDED for the following action: 1. Arrange for an opinion by an appropriate clinician for the purpose of determining the etiology of the Veteran’s enlarged uterus. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. The clinician must provide opinions as to the following: a. Whether the Veteran has a disability manifested by an enlarged uterus that is distinct from her service-connected adenomyosis and residuals of a myomectomy or whether an enlarged uterus is a symptom of one or both of these disabilities. b. Whether it is as likely as not (a probability of 50 percent or greater) that any current enlarged uterus had its origin in service or is related to the Veteran’s active service. c. Whether it is as least as likely as not that any current enlarged uterus was caused by the Veteran’s service-connected adenomyosis or residuals of a myomectomy. d. Whether it is as least as likely as not that any current enlarged uterus was aggravated beyond its natural progression by the Veteran’s service-connected adenomyosis or residuals of a myomectomy. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the August 2016 private treatment record of her myomectomy, which noted that “[e]xam under anesthesia reveals globular enlarged uterus, anteverted, no palpable adnexal masses.” The rationale for any opinion expressed should be provided. Note that a lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why this is so. 2. Readjudicate the claim. If the decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ryan Frank, 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.