Citation Nr: 20037101 Decision Date: 06/01/20 Archive Date: 06/01/20 DOCKET NO. 16-27 683 DATE: June 1, 2020 ORDER New and material evidence has been submitted; thus, the petition to reopen the claim for entitlement to service connection for pelvic inflammatory disease with history of salpingitis (PID) is granted. REMANDED Entitlement to service connection for PID, to include as secondary to service-connected posttraumatic stress disorder (PTSD) and/or as secondary to sexually transmitted infection (STI) as due to military sexual trauma (MST), is remanded. FINDINGS OF FACT 1. A June 1991 rating decision denied entitlement to service connection for PID. The Veteran did not appeal nor was new and material evidence received within one year. 2. Additional evidence received after the June 1991 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, and relates to an unestablished fact necessary to substantiate the claim for service connection for PID. CONCLUSIONS OF LAW 1. The June 1991 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received since the June 1991 rating decision; thus, the claim for service connection for PID is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1989 to November 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in March 2020. A transcript of that hearing is of record. See hearing transcript, March 4, 2020. The Board notes that the Veteran’s representative submitted argument in support of a claim for clear and unmistakable error in prior rating decisions that failed to assign a 100 percent rating for PTSD in a March 2020 submission. This claim was denied the Board in a November 2019 decision and is currently not before the Board for consideration. 1. PID – New and Material Evidence Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156 (a), especially the phrase “raise[s] a reasonable possibility of substantiating the claim,” does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C. § 5108 requires only new and material evidence to reopen). Shade further held that 38 C.F.R. § 3.156 “suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]” Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon, 20 Vet. App. 79, 83 (2006). The Court has elaborated on what constitutes “new and material evidence.” New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App. 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans, 9 Vet. App. at 273. The Veteran’s claim was previously denied in a June 1991 rating decision because she did not have a diagnosis of PID and there was no evidence that any claimed disorder was in any way related to her active service or any incidents therein. The evidence considered in the June 1991 rating decision includes post-service treatment records, VA examination reports and reports from the Judge Advocate General. The Veteran was notified of this decision in a July 1991 letter. The Veteran did not disagree with this determination. New and material evidence was not received within one year. See 38 C.F.R. § 3.156(b). Under these circumstances, the July 1991 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The evidence received since the June 1991 rating decision, which is the last final denial, includes VA treatment records and private medical records, as well as the Veteran’s hearing testimony. The Veteran’s medical records show a diagnosis of chronic pain syndrome of the pelvic region. See VA treatment records, September 17, 2018. The presented evidence speaks directly to an element which was not of record, mainly a diagnosis of PID. See Kent v. Nicholson, 20 Vet. App. 1, 10 (2006) (finding that “the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied”). Notably, the Board has considered whether 38 C.F.R. § 3.156(c) pertains to this claim. Subsection (c)(1) of the regulation demands that, “at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim.” 38 C.F.R. § 3.156(c)(1). Here, the new records associated with the claims file included service treatment records (STRs). These records, however, appear to be duplicative of documents which already existed in the Veteran’s claims file at the time of the June 1991 denial. As such, VA did not have to reconsider the Veteran’s claim, as the official service department records had been associated with the claims file when VA first decided the claim. This evidence is new and material as it is not redundant of evidence already of record in June 1991, and it relates to unestablished facts of whether the Veteran’s PID may be related to service. See 38 C.F.R. § 3.156(a). As such, the issue of entitlement to service connection for PID is reopened. REASONS FOR REMAND 1. PID – Service Connection At the March 2020 hearing, the Veteran asserted that her claimed PID was secondary to her service-connected PTSD and/or as secondary to an STI which was the result of MST she experienced while in active service. She stated that she receives medical treatment from the VA Medical Center (VAMC) in Salt Lake City, Utah. See hearing transcript, March 4, 2020. The Veteran was afforded a VA examination in December 1990, in which the examiner related that the Veteran was diagnosed with PID on July 31, 1990, at the Salt Lake City VAMC. The examiner stated that the Veteran was status post pelvic inflammatory disease. The examiner did not issue an opinion as to the etiology of the Veteran’s claimed PID. See VA Compensation/Pension Evaluation, December 29, 1990/January 3, 1991. The Veteran’s medical records show a diagnosis of chronic pain syndrome of the pelvic region. See VA treatment records, September 17, 2018. The Veteran was not afforded a VA examination to determine the nature and etiology of her claimed PID, including whether the disorder was secondary to her service-connected PTSD and/or as secondary to an STI which resulted from the MST she experienced while in active service. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The requirement that the evidence “indicates” that the Veteran’s disability “may” be associated with his service is a low threshold. Id. In light of the Veteran’s contentions and the record on appeal, a VA examination should be obtained to determine the etiology of her claimed PDI, to include whether the disorder is related to her service-connected PTSD (and the MST), or whether it is aggravated by the PTSD. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, supra. In addition, any outstanding VA treatment records should be obtained, as the most recent medical treatment records in evidence are from November 2018. The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records from the Sale Lake City VAMC. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and her representative and afford her an opportunity to submit any copies in her possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for a VA examination by an appropriate clinician to assess the nature and etiology of her claimed PID. Whether it is necessary for this examination to be conducted in person or not is left to the discretion of the examiner. The claims file, including a copy of this remand, must be made available to and reviewed by the examiner. The examiner should also take a history from the Veteran as to the progression of her disability. After a review of the record, an examination and interview of the Veteran, the examiner should address each of the following: (A) Identify all diagnosed gynecological disorders. If a gynecological disorder is not diagnosed, the examiner should address the Veteran’s reports of persistent pelvic pain. Please note that the Veteran was afforded a VA examination in December 1990, in which the examiner related that the Veteran was diagnosed with PID on July 31, 1990, at the Salt Lake City VAMC. The examiner stated that the Veteran was status post pelvic inflammatory disease. (B) For each diagnosed gynecological disorder, is it at least as likely as not (i.e., whether it is 50 percent or more probable) that the disorder was caused by, or is otherwise etiologically related to, the Veteran’s active service? The examiner should specifically address the Veteran’s contentions that she contracted an STI as a result of her in-service MST, resulting her current PID or gynecological disorder. The examiner should also note that the Veteran’s in-service MST is confirmed. (C) Is it at least as likely as not (50 percent or greater probability) that any diagnosed gynecological disorder was caused or aggravated (chronically worsened) by the Veteran’s service-connected PTSD? A rationale for any opinion offered should be provided. As part of this rationale, the examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). A discussion of the facts and medical principles involved would be of considerable assistance to the Board. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lech, 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.