Citation Nr: 21063855 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 15-35 057A DATE: October 18, 2021 ORDER Entitlement to an effective date earlier than February 22, 2011 for the award of service connection for irritable bowel syndrome (IBS) is denied. Entitlement to an effective date earlier than March 10, 2011 for the award of service connection for a residual scar status post right breast lumpectomy is denied. The claim of entitlement to special monthly compensation (SMC) for loss of use of a creative organ is granted. REMANDED Entitlement to an initial compensable rating for IBS is remanded. Entitlement to an initial compensable rating for residual scar status post right breast lumpectomy is remanded. Entitlement to SMC due to loss of breast tissue is remanded. FINDINGS OF FACT 1. An unappealed September 2000 rating decision denied entitlement to service connection for constipation (claimed as bowel movement syndrome), and new and material evidence was not received by VA within one year. 2. Since September 2000 rating decision and prior to February 22, 2011, there was no informal or formal claim for entitlement to service connection for irritable bowel syndrome. 3. Prior to March 10, 2011, there was no informal or formal claim for entitlement to service connection for residual scar status post right breast lumpectomy. 4. The Veteran is service-connected for residual scars status post pelvic surgery. The pelvic surgery revealed fallopian tube damage and the AOJ conceded in-service partial removal of an ovary. The evidence reflects that residuals of surgery included infertility, which was as likely as not related to the gynecological conditions treated in service. CONCLUSIONS OF LAW 1. A September 2000 rating decision that denied entitlement to service connection for constipation (claimed as bowel movement syndrome) is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.104, 20.1103. 2. The criteria for an effective date prior to February 22, 2011 for the award of service connection for irritable bowel syndrome, are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for an effective date prior to March 10, 2011 for the award of service connection for residual scar status post right breast lumpectomy, are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. The criteria for compensation for loss of use of a creative organ, associated with infertility, have been met. 38 U.S.C. §§ 1114(k), 1155; 38 C.F.R. §§ 3.350(a), 4.7, 4.59. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1991 to February 2000. These matters are on appeal from multiple rating decisions. The Veteran testified before the undersigned Veterans Law Judge during a June 2021 hearing. A transcript of the hearing has been associated with the claims file. Effective Dates In general, except as otherwise provided, the effective date of an evaluation based on an original claim or a claim to reopen will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. There is no provision in either statute or VA regulations that allows for an earlier effective date based on a reopened claim unless a clear and unmistakable error (CUE) was committed in a prior decision, or unless the new and material evidence resulted from receipt of additional relevant service department records. See 38 U.S.C. § 5110(i); 38 C.F.R. §§ 3.105, 3.156(c). In this case, the Veteran has not asserted that a CUE existed in any prior final rating decision denying entitlement to service connection for IBS, nor are the provisions of 38 C.F.R. § 3.156(c) pertaining to receipt of newly obtained service records applicable in this case. Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase, and revised 38 C.F.R. § 3.400(o)(2). Under the former regulations, any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a) (2014). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Under former 38 C.F.R. § 3.157(a) (which was in effect prior to March 24, 2015), a report of examination or hospitalization would be accepted as an informal claim for increase or to reopen, if the report relates to a disability that may establish entitlement. However, there must first be a prior allowance or disallowance of a claim on the basis that the service-connected disability is not compensable. See 38 C.F.R. § 3.157(b) (2014). In Servello v. Derwinski, 3 Vet. App. 196, 198 (1992), the Court held that the applicable statutory and regulatory provisions, fairly construed, require the Board to look at all communications in the file that might be interpreted as applications or claims, formal or informal, for increased benefits and then, to all other evidence of record to determine the earliest date as of which, within the one-year prior to the claim, the increase in disability was ascertainable. 38 U.S.C. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(2), 3.155(a); Quarles, supra. 1. Entitlement to an effective date earlier than February 22, 2011 for the award of service connection for irritable bowel syndrome, is denied. By way of background, the Veteran is seeking a date effective from when she was discharged from the military in February 2000 for the award of service connection for irritable bowel syndrome. The record reflects that she filed an initial service connection claim in May 2000. In a September 2000 notification letter, she was notified of the AOJ's rating decision that denied entitlement to service connection for constipation (bowl movement syndrome). She did not initiate an appeal of that decision. The Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, no additional evidence was received prior to the expiration of the appeal period stemming from the September 2000 rating decision. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). As such, the September 2000 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.104, 20.1103. The Board acknowledges that finality in the September 2000 rating decision could be vitiated by a finding of clear and unmistakable error (CUE). However, as noted above, no such claim has been raised here. A CUE claim requires some degree of specificity not only as to what the alleged error is, but unless it is the kind of error that, if true, would constitute CUE on its face persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. See Phillips v. Brown, 10 Vet. App. 25, 31 (1997). Following the final September 2000 rating decision, the Veteran's claim for service connection for irritable bowel syndrome was received on February 22, 2011. Since the September 2000 final rating decision and prior to February 22, 2011, there is nothing of record indicating an intent to file a claim for service connection for anything related to constipation, bowel movement syndrome, or irritable bowel syndrome. The Board has considered whether any communication of record dated prior to February 22, 2011, could serve as an informal claim in order to entitle the Veteran to an earlier effective date. In this regard, any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155. However, in this case, no document submitted prior to February 22, 2011, indicates intent to pursue a claim of entitlement to service connection for irritable bowel syndrome. It is further noted that former 38 C.F.R. § 3.157 does not avail the Veteran in this case, as the Veteran's prior service-connection claim for IBS was not denied in 2000 on the basis that it was service-connected, but noncompensable. See former 38 C.F.R. § 3.157(b). Rather, it was denied based on a finding that there was no identified disability at the time and, in turn, no link to service. Although there is medical evidence showing treatment for gastrointestinal problems prior to the 2011 claim to reopen, such records cannot, in and of itself, constitute a claim for service-connection under former 38 C.F.R. § 3.157. The AOJ has granted the earliest effective date for the award of service connection for irritable bowel syndrome that the law allows. As there is no evidence of VA's receipt of a claim, formal or informal, for service connection for irritable bowel syndrome since the final September 2000 decision and prior to February 22, 2011, the award of service connection for such disability may be no earlier than the date of claim. Therefore, the Veteran's claim for an effective date earlier than February 22, 2011, for the award of service connection for irritable bowel syndrome, must be denied. 2. Entitlement to an effective date earlier than March 10, 2011 for the award of service connection for residual scar status post right breast lumpectomy, is denied. The Veteran's is seeking a date effective from her discharge from service for the award of service connection for a residual scar, status post right breast lumpectomy. A review of the record reflects that the Veteran's claim for service connection for a residual scar, status post right breast lumpectomy was received on March 10, 2011. Prior to March 10, 2011, there is nothing of record indicating an intent to file a claim for service connection for this scar. The Board has considered whether any communication of record dated prior to March 10, 2011, could serve as an informal claim in order to entitle the Veteran to an earlier effective date. In this regard, as noted above, any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (2014). However, in this case, no document submitted prior to March 10, 2011, indicates intent to pursue a claim of entitlement to service connection for residual scar status post right breast lumpectomy. It is further noted that 38 C.F.R. § 3.157 is not applicable, as medical records cannot constitute an initial claim for service connection. The Board acknowledges that the medical records reflect that the Veteran had a residual scar status post right breast lumpectomy prior to March 10, 2011; however, there was no communication from the Veteran indicating that she wished to file a claim until March 10, 2011. The AOJ has granted the earliest effective date for the award of service connection for residual scar status post right breast lumpectomy that the law allows. As there is no evidence of VA's receipt of a claim, formal or informal, for service connection for a residual scar, status post right breast lumpectomy prior to March 10, 2011, the award of service connection for such disability may be no earlier than the date of claim. Therefore, the Veteran's claims for an effective date earlier than March 10, 2011, for the award of service connection for residual scar status post right breast lumpectomy, must be denied. SMC The claim of entitlement to SMC for loss of use of a creative organ is granted. While the General Rating Formula does not provide for compensation based on damaged fallopian tubes or the loss of a partial ovary, 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) regarding SMC ratings provide for compensation based on the loss of use of a creative organ. Loss of use of a creative organ is shown by acquired absence of one or both testicles (other than undescended testicles) or ovaries or other creative organ. 38 C.F.R. § 3.350(a)(1). Crucially, under 38 C.F.R. § 3.350(a)(1)(ii), when loss or loss of use of a creative organ resulted from wounds or other trauma sustained in service, or resulted from operations in service for the relief of other conditions, the creative organ becoming incidentally involved, the benefit may be granted. The evidence demonstrates that the Veteran's in-service pelvic surgery has rendered her unable to reproduce. Service treatment records reflect treatment for bilateral hydrosalpinx, multiple spontaneous abortions/miscarriages, and issues with infertility. August 1995 and April 1996 treatment records suggested ectopic pregnancies. At a September 2011 VA examination, the Veteran reported a history of her gynecological condition beginning in 1995 when she stated that she had a miscarriage and required immediate surgery. She indicated that her fallopian tubes were lost and/or damaged. The examiner noted a history of the Veteran being diagnosed with severe pelvic adhesive disease in April 1996, and summarized the in-service surgical procedure as follows: Severe pelvic adhesive disease was noted and, at first, the right fallopian tube was completely obscured, and ectopic pregnancy could not be ruled out. The left fallopian tube appeared to have hydrosalpinx, but did not appear consistent with an ectopic pregnancy. Once adhesiolysis was complete and both fallopian tubes were visible, the pelvis was irrigated with warm saline. Bleeding was noted from the shaggy adhesions on the posterior uterine serosa. These were coagulated with electrocautery. The abdomen was decompressed of c02 gas. Attention was returned to the vagina where a speculum was replaced. The cervix was dilated and still protruding a small amount of tissue. A small curette was placed and curettage was performed with a small amount of tissue sent to pathology. It was felt that the Veteran had an incomplete miscarriage as opposed to ectopic pregnancy. The September 2011 VA examiner diagnosed the Veteran with status post-surgical lysis of adhesions due to severe pelvic adhesions. The examiner was asked about the residuals of surgery due to pelvic adhesions and responded that residuals of surgery specifically included infertility, which was as likely as not related to the gynecological conditions treated in service. In the September 2012 rating decision, the AOJ denied entitlement to SMC based on a finding that the evidence did not show the absence of one or more ovary, although it did recognize that the Veteran underwent partial removal of an ovary. The AOJ did not appear to consider 38 C.F.R. § 3.350(a)(1)(ii), which allows for an SMC award based on loss of use of a creative organ when such is due to in-service trauma or surgery. So it is in this case. On the unique facts of this case, the Board finds that the Veteran is eligible for SMC based on loss of use of a creative organ, based on a finding that her infertility was at least as likely as not related to in-service her gynecological conditions and in-service surgery. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for irritable bowel syndrome (IBS) is remanded. During her June 2021 hearing, the Veteran reported that she has sought treatment for, and recently underwent three procedures related to her colon between 2019 and 2021 at the Fayetteville VA Medical Center (VAMC). See Hearing Transcript, pgs. 8-9. Updated VA treatment records may have some bearing on her claim and attempts should be made on remand to associate such records with the claims file. Additionally, during her hearing, the Veteran indicated that her irritable bowel syndrome had increased in severity since her last VA examination in July 2015. In addition to undergoing three procedures for her colon between 2019 and 2021, she reported that she recently was issued a step stool for use when using the restroom. See Hearing Testimony, pgs. 4, 8-9. Given the fact that there are no relevant contemporaneous medical records to document the current severity of the Veteran's irritable bowel syndrome, and there is evidence to suggest possible increase in the severity of such disability in the hearing testimony, the Board finds that a remand for a contemporaneous VA examination is warranted. Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). 2. Entitlement to an initial compensable rating for residual scar status post right breast lumpectomy is remanded. 3. Entitlement to SMC due to loss of breast tissue is remanded. The Veteran claims entitlement to a compensable rating for residual scar, status post right breast lumpectomy. The most recent examination addressing the current severity of the Veteran's residual scar status post right breast lumpectomy was in September 2011. At the time of the examination, the Veteran reported that she had swelling and pain in the area, which were not present during an assessment of the right breast scar. During her hearing, the Veteran reported that her right breast condition was more than just a scar as there was an indentation at the location of the scar, which gave the right breast a deformed appearance. Although the Veteran underwent subsequent VA scar examination, her right breast was not evaluated. Given the above, the Board finds that the severity of the Veteran's residual scar status post right breast lumpectomy is unclear, and that a new VA examination is necessary to determine the current severity of her service-connected residual scar status post right breast lumpectomy. Additionally, the Veteran claims entitlement to SMC for loss of breast tissue as a result of service-connected residual scar status post right breast lumpectomy. As it relates to 38 U.S.C. § 1114(k), special monthly compensation is warranted under this section if the veteran, as the result of a service-connected disability, has suffered the anatomical loss of 25 percent or more of tissue from a single breast or both breasts in combination (including loss by mastectomy or partial mastectomy) or has received radiation treatment of breast tissue. On review of the September 2011 VA examination, the examiner did not assess how much tissue was missing from her right breast. A remand of the claim for entitlement to SMC based on loss of breast tissue is required so that a new examination can be scheduled. The matters are REMANDED for the following action: 1. Obtain any outstanding records from VA or private health care providers, including treatment records from the Fayetteville VAMC regarding the three colon related procedures and issuance of a step stool between 2019 and 2021. With the Veteran's assistance, obtain copies of any pertinent records and add them to the claims file. 2. Thereafter, ensure that the Veteran is scheduled for an examination to determine the current degree of severity of her service-connected irritable bowel syndrome. The claims file must be made available to the examiner for review. Any indicated diagnostic tests and studies should be accomplished, and all pertinent symptomatology and findings should be reported in detail. The examiner should specifically comment on the presence (including frequency and severity), or absence, of symptoms such as diarrhea, constipation, bowel disturbance and abdominal distress. The examiner must comment on the functional impairment caused by the Veteran's irritable bowel syndrome. A complete rationale for all opinions should be provided. 3. Afford the Veteran appropriate examination(s) to determine the current nature and severity of her service-connected residual scar, status post right breast lumpectomy. The record must be made available to the examiner. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should specifically address the below inquiries. a) The examiner should assess the size and severity of the Veteran's service-connected right breast scar. The examiner should consider and discuss the Veteran's reported symptoms of swelling and pain on September 2011 VA examination. b) The examiner should also describe all residuals of the Veteran's right breast lumpectomy or scar, including whether such resulted in alteration of the size or form of the Veteran's right breast. The examiner should specify whether or not there is an anatomical loss of 25 percent or more of tissue from a single breast. A rationale should be provided for each opinion offered. 4. Then, readjudicate the issues on appeal. If the benefits sought remain denied, in whole or in part, send the Veteran and her representative a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Crohe, 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.