Citation Nr: 20046367 Decision Date: 07/10/20 Archive Date: 07/10/20 DOCKET NO. 19-30 215 DATE: July 10, 2020 ORDER Revision based on clear and unmistakable error (CUE) of the April 16, 2010, rating decision, which denied service connection for anxiety, is dismissed. The application to reopen the claim of service for vaginitis is granted. The application to reopen the claim of service for a hysterectomy, to include a cyst of the right ovary, is granted. REMANDED The issue of service connection for a chronic vaginal disorder is remanded. The issue of service connection for a uterine disorder, to include hysterectomy residuals and an ovarian cyst, is remanded. FINDINGS OF FACT 1. The motion alleging CUE did not set forth clearly and specifically the alleged CUE, or error(s) of fact or law, in the April 16, 2010, rating decision; the legal or factual basis for such allegation(s); and why the result would have been manifestly different but for the alleged error(s). 2. In April 2010, VA denied service connection for vaginitis and for a hysterectomy, to include a cyst of the right ovary. The Veteran was informed in writing of the adverse determinations and her appellate rights in April 2010. She did not submit a notice of disagreement (NOD) with the decisions. 3. The April 2010 rating decision is final. 4. Evidence associated with the claims file since the April 2010 rating decision is new and material and raises a reasonable possibility of substantiating the Veteran’s claim. CONCLUSIONS OF LAW 1. Because the pleading requirements of a motion for revision of a decision based on CUE have not been met, the motion must be dismissed without prejudice to refiling. 38 U.S.C. § 5112, 7104, 7105; 38 C.F.R. § 3.105(a), 20.205 (2019). 2. The April 2010 rating decision that denied service connection for vaginitis and a hysterectomy, to include a cyst of the right ovary, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2019). 3. New and material evidence sufficient to reopen the Veteran’s claims of vaginitis and a hysterectomy, to include a cyst of the right ovary, has been presented. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the U.S. Army from August 1981 to September 1981. I. CUE Dismissal The Board will not reach substantive arguments related to the Veteran’s CUE claim. The claim is dismissed because it was not pled with the requisite specificity. Generally, CUE must be pled with some degree of specificity as to what the alleged error is and, unless it is the kind of error that if true would be CUE on its face, the claimant must also give persuasive reasons as to why the result of the prior determination would have been manifestly different but for the alleged error. Fugo v. Brown, 6 Vet. App. 40, 44 (1993); see also Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits). Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error are insufficient to satisfy the requirement that a CUE motion be pled with specificity. Any motion which fails to comply with these requirements shall be dismissed without prejudice to re-filing. 38 C.F.R. § 20.1404(b); Disabled American Veterans v. Gober, 234 F.3d 682, 698-99 (Fed. Cir. 2000). In the Veteran’s May 2016 motion for CUE, she stated that she was entitled to an earlier effective date for her psychiatric disorder due to clear and unmistakable error. The Veteran did not specifically state which decision contained CUE. Where there are multiple decisions, a failure to specify the dates of the RO (or Board) decision being collaterally attacked, renders the pleading of CUE insufficient. Mindenhall v. Brown, 7 Vet. App. 271, 275 (1994). However, the Board finds that there is only one potential rating decision the Veteran could collaterally attack, the April 16, 2010, rating decision. Therefore, the Board will read the Veteran’s claim as a claim for CUE in the April 16, 2010, rating decision which denied service connection for anxiety. The Veteran’s May 2016 CUE motion cited Scemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004), and stated that CUE claims must be fairly and fully developed. The Veteran also cited Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005) and noted that VA claims should be read sympathetically. The Veteran did not provide any argument as to how VA did not comply with these obligations. The Veteran’s May 2016 CUE motion cited VAOPGCPREC 12-95 (May 10, 1995), which states that an agency of original jurisdiction’s (AOJ’s) failure to consider records which were in VA’s possession at the time of the decision, although not actually in the record before the AOJ, may constitute clear and unmistakable error. The Veteran does not identify which records in the Veteran’s file are the basis for this argument and therefore it is not possible for the Board to evaluate the Veteran’s contention. Upon reviewing the record, the Board notes that there are no applicable records which predate the April 16, 2010, rating decision which were not listed in the evidence section of the April 16, 2010, rating decision. Lastly, the Veteran’s May 2016 CUE motion cited 38 C.F.R. § 3.1(p) and 38 C.F.R. § 3.157(b). The Veteran quoted 38 C.F.R. § 3.157(b)(2) (Evidence from a private physician or layman), which states: “The date of receipt of such evidence will be accepted when the evidence furnished by or in behalf of the claimant is within the competence of the physician or layperson and shows the reasonable probability of entitlement to benefits.” The Veteran did not specify the relevance of this code section or cite what potential evidence she was discussing. The Board notes that 38 C.F.R. § 3.157(b) provides an avenue for various forms of medical evidence to be considered as informal claims for an increase when a previous formal claim has been allowed or disallowed. At the time of the April 16, 2010, rating decision, the Veteran had not submitted a formal claim for anxiety that had been allowed or disallowed. In fact, the April 16, 2010, rating decision is the first rating decision in the Veteran’s file and therefore no medical evidence of record prior to April 16, 2010, could fall under the provisions of 38 C.F.R. § 3.157(b). Therefore, the Board finds that 38 C.F.R. § 3.157(b) is not applicable in this case. The Veteran has listed at least two separate contentions regarding CUE in the April 16, 2010, rating decision and has failed to specifically identify which records form the underlying basis for the contentions. The Board has a duty to read pro se filings liberally. Andrews, 421 F.3d at 1283-84. However, while the Veteran is not represented by counsel, she is represented by an accredited VA claims agent. The Board has still attempted to read the Veteran’s CUE contentions as liberally as possible. However, the Board has no choice but to dismiss the Veteran’s motion for CUE for failure to be pled with specificity. Non specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy the requirement that a CUE motion be pled with specificity. Any motion which fails to comply with these requirements shall be dismissed without prejudice to re-filing. 38 C.F.R. § 20.1404 (b); Disabled American Veterans, 234 F.3d at 698 99. Therefore, the Veteran’s motion for CUE is dismissed. The Veteran and her representative are advised that each new theory of CUE (even if all theories pertain to the same claim) is a separate and distinct matter, and the Board lacks jurisdiction over any theory of CUE that has not been adjudicated by the RO in the first instance. Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002); Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006). The Board also reiterates that a CUE claim must be pled with specificity, including a clear statement as to which decision contains CUE. For the foregoing reasons, the Veteran’s CUE claim is dismissed without prejudice. The Veteran is free to submit a properly pled motion of CUE at any point in the future. II. New and Material Evidence Generally, absent the filing of an NOD within one year of the date of mailing of the notification of the initial review and determination of a veteran’s claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of CUE. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase “raises a reasonable possibility of substantiating the claim” enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App. 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Where documents are within VA’s control and could reasonably be expected to be a part of the record, such documents are, in contemplation of law, before VA and should be included in the record. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Board is required to consider the question of whether new and material evidence has been received to reopen the Veteran’s claim without regard to the RO’s determination in order to establish the Board’s jurisdiction to address the underlying claims and to adjudicate the claims on a de novo basis. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In April 2010, the RO denied service connection claims for vaginitis because there was no evidence of a chronic disorder. The RO also denied service connection for a hysterectomy, to include a cyst of the right ovary, because, although the evidence indicated that she had a hysterectomy, there was no evidence that it was caused by or occurred in service. The Veteran was informed in writing of the adverse decisions and her appellate rights in April 2010. She did not submit an NOD. New and material evidence pertaining to the issues of service connection for vaginitis and a hysterectomy, to include a cyst of the right ovary, was not received by VA or constructively in its possession within one year of written notice of the April 2010 rating decision. Therefore, that decision became final. 38 C.F.R. § 3.156(b). The additional documentation received since April 2010 includes a medical study regarding ovarian cysts and appropriate follow-up care, and VA treatment notes from August 2016, August 2017, and October 2018. These treatment notes indicate a history of vaginitis, fibroids, and cysts. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Here, the newly-submitted evidence is of such significance that, when considered for the limited purpose of reopening the Veteran’s claims, it raises a reasonable possibility of substantiating her claims for service connection when considered with the previous evidence of record. As new and material evidence has been received, the Veteran’s claims of entitlement to service connection for vaginitis and a hysterectomy, to include a cyst of the right ovary, are reopened. REASONS FOR REMAND 1. The issue of service connection for a chronic vaginal disorder is remanded. 2. The issue of service connection for a uterine disorder, to include hysterectomy residuals and an ovarian cyst, is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: The Veteran has not been afforded VA examinations for vaginal or uterine disorders. As such, the Board finds that remand is necessary. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Schedule the Veteran for all necessary VA examinations to obtain an opinion as to the nature and etiology of a chronic vaginal disorder and a uterine disorder. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address the following: (a.) Whether a chronic vaginal disorder was caused by any in-service event, injury, disease, or disorder, or in any way originated during service. (b.) Whether vaginitis is a recurrent or chronic disorder such that each bout of the disease is related to past infections or whether each infection is separate and acute. (c.) Whether a uterine disorder, to include hysterectomy residuals and an ovarian cyst, were caused by any in-service event, injury, disease, or disorder, or in any way originated during service. The examiner’s attention is drawn to the following: *September 1981 service treatment record (STR) in which the Veteran was noted to have sharp intermittent lower abdominal pain accompanied by vaginal discharge, itching, burning, and odor for the preceding two weeks, and in which she was diagnosed with vaginitis. *September 1981 STR in which the clinician noted a 3 to 4 centimeter cyst on the right ovary that was resolving and in which the clinician stated that the Veteran experienced no pain when examined. *November 2003 private treatment record stating that the Veteran had a history of pelvic pain and a fibroid uterus and stating that a hysterectomy was carried out on November 17, 2003, with no complications. *August 2016 VA treatment record which indicates that the Veteran tested positive for bacterial vaginitis and was treated. *August 2017 VA treatment record stating the Veteran was seen for complaints of abdominal pain and in which and her history of fibroids and cysts was noted. *October 2018 VA treatment record in which the Veteran was noted to have complaints of vaginal burning and itching after switching soaps and in which the clinician noted a white discharge with no odor and no other urinary symptoms. *October 2018 treatment note stating a possible diagnosis of bacterial vaginosis. (Continued on the next page)   *October 2019 correspondence from the Veteran which includes a study called “Evaluation of Ovarian Cysts” which discussed appropriate treatment and diagnostic testing for ovarian cysts. 3. Readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed for response before the case is returned to the Board. Jacqueline E. Miller Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Wozniak, Associate Attorney 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.