Citation Nr: 21064407 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 17-43 743 DATE: October 20, 2021 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a vaginal disability, to include residuals of colporrhaphy, is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for a vulvar disability, to include residuals of perineoplasty, is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for an anal disability, to include residuals of sphincteroplasty, is reopened. REMANDED Entitlement to service connection for a vaginal disability, to include residuals of colporrhaphy and loss of use of a sexual organ and problems with sexual intercourse due to pelvic pain and permanent vaginal stitches, is remanded. Entitlement to service connection for a vulvar disability, to include residuals of perineoplasty, is remanded. Entitlement to service connection for an anal disability, to include residuals of sphincteroplasty, is remanded. Entitlement to service connection for an acquired psychiatric disability, to include anxiety and depression, is remanded. FINDINGS OF FACT 1. An April 2007 rating decision denied the Veteran's service connection claim for residuals of colporrhaphy. Although the Veteran was notified of the April 2007 rating decision, she did not appeal. 2. The evidence submitted by the Veteran subsequent to the April 2007 rating decision in support of reopening her service connection claim for residuals of colporrhaphy relates to a previously unestablished fact necessary to substantiate the claim and is neither cumulative nor redundant of the evidence previously submitted into the record. 3. An April 2007 rating decision denied the Veteran's service connection claim for residuals of perineoplasty. Although the Veteran was notified of the April 2007 rating decision, she did not appeal. 4. The evidence submitted by the Veteran subsequent to the April 2007 rating decision in support of reopening her service connection claim for residuals of perineoplasty relates to a previously unestablished fact necessary to substantiate the claim and is neither cumulative nor redundant of the evidence previously submitted into the record. 5. An April 2007 rating decision denied the Veteran's service connection claim for residuals of sphincteroplasty. Although the Veteran was notified of the April 2007 rating decision, she did not appeal. 6. The evidence submitted by the Veteran subsequent to the April 2007 rating decision in support of reopening her service connection claim for residuals of sphincteroplasty relates to a previously unestablished fact necessary to substantiate the claim and is neither cumulative nor redundant of the evidence previously submitted into the record. CONCLUSIONS OF LAW 1. The April 2007 rating decision is final. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. § 20.1100, 20.1103. 2. New and material evidence sufficient to reopen the claim of service connection for residuals of colporrhaphy has been received. 38 U.S.C. § 1110, 1112, 1113, 1116, 1152, 5108, 7103, 7104, 7105, 7111; 38 C.F.R. §§ 3.156, 3.303, 3.304, 3.307, 3.309. 3. New and material evidence sufficient to reopen the claim of service connection for residuals of perineoplasty has been received. 38 U.S.C. § 1110, 1112, 1113, 1116, 1152, 5108, 7103, 7104, 7105, 7111; 38 C.F.R. §§ 3.156, 3.303, 3.304, 3.307, 3.309. 4. New and material evidence sufficient to reopen the claim of service connection for residuals of sphincteroplasty has been received. 38 U.S.C. § 1110, 1112, 1113, 1116, 1152, 5108, 7103, 7104, 7105, 7111; 38 C.F.R. §§ 3.156, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the U.S. Navy from September 1992 to December 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned at a hearing held in January 2020; a transcript of that hearing is of record. An April 2007 rating decision previously denied the Veteran's service connection claims for the following disabilities on the grounds that the record lacked evidence of a current disability: (1) the Veteran's claimed vaginal disability, to include residuals of colporrhaphy; (2) the Veteran's claimed vulvar disability, to include residuals of perineoplasty; and (3) the Veteran's claimed anal disability, to include residuals of sphincteroplasty. However, as set forth more fully below, the Board finds that the Veteran has submitted new and material evidence sufficient to warrant the reopening of these three service connection claims. New and Material Evidence 1. New and material evidence having been submitted, the claim of entitlement to service connection for a vaginal disability, to include residuals of colporrhaphy, is reopened. 2. New and material evidence having been submitted, the claim of entitlement to service connection for a vulvar disability, to include residuals of perineoplasty, is reopened. 3. New and material evidence having been submitted, the claim of entitlement to service connection for an anal disability, to include residuals of sphincteroplasty, is reopened. Rating decisions from which an appeal is not perfected become final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 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. See 38 C.F.R. § 20.200. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received sufficient to reopen the denied claim before addressing the merits of the claim, regardless of whether the AOJ has already addressed the question of reopening. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). New evidence is defined as evidence not previously submitted to agency decisionmakers and which is 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. See 38 C.F.R. § 3.156(a). In order to be considered material, the new evidence must, either by itself or when considered with previous evidence of record, (1) relate to an unestablished fact necessary to substantiate the claim; and (2) raise a reasonable possibility of substantiating the claim. See id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim requires consideration of whether the newly submitted evidence could reasonably substantiate any previously unestablished element of the claim were it to be reopened. See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). However, finality attaches once a claim for benefits is disallowed, not when a particular theory is rejected. See Bingham v. Nicholson, 421 F.3d 1346, 1348-50 (2005). Accordingly, a new theory of causation for a disease that was the subject of a previously denied claim cannot be the basis of a new claim absent a presentation of new and material evidence or of clear and unmistakable error. See Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008); 38 U.S.C. §§ 7103(a), 7104(a), (b), 7111(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is generally presumed, unless it is inherently false or untrue or, if in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the Veteran contends she has submitted new and material evidence sufficient to warrant reopening of her service connection claims for her vaginal, vulvar, and anal disabilities, and for the reasons set forth below, the Board agrees. As stated above, the Veteran's service connection claims for her vaginal, vulvar, and anal disabilities were previously denied in an April 2007 rating decision on the grounds that the record lacked evidence of residuals from the Veteran's September 2006 in-service surgical treatment involving a colporrhaphy, a perineoplasty, and a sphincteroplasty. Although the Veteran was notified of the April 2007 rating decision denying her claim, she did not appeal the decision; accordingly, the April 2007 rating decision became final in April 2008. See 38 C.F.R. § 20.1103, 20.200. The evidence of record at the time of the April 2007 rating decision consisted of the following: (1) the Veteran's service treatment records (STRs); and (2) a February 2007 VA examination report. In February 2017, the Veteran filed additional service connection claims for her vaginal, vulvar, and anal disabilities which were denied in an April 2017 rating decision for lack of new and material evidence. Subsequently, in June 2017, the Veteran was afforded another VA examination, which culminated in a report finding it is less likely than not that the record contains "objective evidence of an abnormal residual of colporrhaphy, sphincteroplasty, and perineoplasty surgery." In August 2017, the Veteran submitted a lay statement in support of her claims and in January 2020, she testified at a Board hearing before the undersigned as follows: (1) she continues to suffer from residuals of her September 2006 in-service vaginal, vulvar, and anal surgeries, including severe pelvic pain and rawness; (2) she had permanent vaginal stitches placed during her September 2006 in-service surgery that continue to cause her discomfort; (3) she continues to suffer from urinary tract infections, excessive urinary frequency, and periodic urinary leakage; (4) she suffers from explosive bowel movements; (5) she suffers from loss of use of a sexual organ as a result of these symptoms; and (6) she suffers from anxiety and depression as a result of these symptoms. As the definition of a disability for VA purposes refers to the functional impairment of earning capacity, not the underlying cause of said disability, pain or other symptoms that reach the level of functional impairment of a veteran's earning capacity may qualify as a disability. See Saunders v. Wilkie, 886 F.3d 1356, 1363-64 (Fed. Cir. 2018); 38 U.S.C. § 1110. Because the Veteran has testified regarding her functional limitations, to include pain, rawness, urinary incontinence, bowel incontinence, and limited sexual activity, the current record suggests the presence of a disability however the record is unclear as to whether such evidence rises to the level of functional impairment as defined by Saunders, and the Board cannot make a fully informed decision on the issue of service connection for the Veteran's vaginal, vulvar, and anal conditions absent an adequate medical opinion addressing the Veteran's lay testimony. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that the language 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). Accordingly, in light of the foregoing, the Board finds that the Veteran's August 2017 lay statement and January 2020 hearing testimony constitute new and material evidence, as both contain evidence that was not submitted into the record prior to the April 2007 rating decision, and such evidence relates to the previously unestablished but required element of a current disability of the vagina, vulva, and anus. See 38 C.F.R. § 3.156(a). Therefore, the Veteran's request to reopen her service connection claims for vaginal, vulvar, and anal disabilities is hereby granted. REASONS FOR REMAND 1. Entitlement to service connection for a vaginal disability, to include residuals of colporrhaphy and loss of use of a sexual organ and problems with sexual intercourse due to pelvic pain and permanent vaginal stitches, is remanded. 2. Entitlement to service connection for a vulvar disability, to include residuals of perineoplasty, is remanded. 3. Entitlement to service connection for an anal disability, to include residuals of sphincteroplasty, is remanded. Unfortunately, the Veteran's claims for vaginal, vulvar, and anal disabilities must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that she is afforded every possible consideration. The Veteran contends that her vaginal, vulvar, and anal disabilities warrant service connection, and in support of her claim, the Veteran has submitted lay testimony, including a August 2017 lay statement and her January 2020 Board hearing testimony before the undersigned, as follows: (1) she continues to suffer from residuals of her September 2006 in-service vaginal, vulvar, and anal surgeries, including severe pelvic pain and rawness; (2) she had permanent vaginal stitches placed during her September 2006 in-service surgery that continue to cause discomfort; (3) she continues to suffer from urinary tract infections, excessive urinary frequency, and periodic urinary leakage; (4) she suffers from explosive bowel movements; (5) she suffers from loss of use of a sexual organ as a result of these symptoms; and (6) she suffers from anxiety and depression as a result of these symptoms. As stated above, the Veteran was afforded an additional VA examination in June 2017; however, the June 2017 VA examination report fails to address either the Veteran's August 2017 lay statement or her January 2020 Board hearing testimony. When VA undertakes to provide a VA medical opinion, it must ensure that the opinion is adequate, see Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007), which in this context requires that a medical opinion report sufficiently inform the Board of a medical expert's judgment on a medical question, rely upon accurate factual premises, including the Veteran's lay statements regarding symptomatology and the relevant medical evidence of record, and present a fully articulated, sound rationale relating to all potential theories of entitlement. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Moreover, as noted above, the definition of a disability for VA purposes refers to the functional impairment of earning capacity, not the underlying cause of said disability, and pain alone, or other symptoms that reach the level of functional impairment of a veteran's earning capacity, may qualify as a disability. See Saunders, 886 F.3d at 1363-64; 38 U.S.C. § 1110. Because the Veteran has testified regarding her functional limitations, to include pain, rawness, urinary incontinence, bowel incontinence, and limited sexual activity, a determination must be made as to whether such evidence rises to the level of functional impairment as defined by Saunders. Therefore, the Board cannot make a fully informed decision on the issue of service connection for the Veteran's vaginal, vulvar, and anal conditions absent an adequate medical opinion addressing the Veteran's competent lay testimony regarding her residual symptomatology, including but not limited to her severe pelvic pain. See Colvin, 1 Vet. App. at 175. Accordingly, in light of the foregoing, the Veteran's claims must once again be remanded for further development, to include an additional VA examination to determine whether the Veteran's vaginal, vulvar, and anal disabilities are entitled to service connection on any basis. See Barr, 21 Vet. App. at 311. 4. Entitlement to service connection for an acquired psychiatric disability, to include anxiety and depression, is remanded. Unfortunately, the Veteran's service connection claim for an acquired psychiatric disability, to include anxiety and depression, must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. The Veteran contends that her current acquired psychiatric disability, to include anxiety and depression, is related to her active military service, to include residuals from her September 2006 in-service surgery. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 C.F.R. §§ 3.303, 3.307, 3.309. However, the Board cannot make a fully informed decision on the issue of service connection for the Veteran's acquired psychiatric disability because no VA examiner has opined as to the nature and etiology of such condition and whether it is causally related to the Veteran's active military service. See Colvin, 1 Vet. App. at 175. Accordingly, a VA psychiatric examination is necessary to determine whether the Veteran's current acquired psychiatric disability is related to her active military service and thus entitled to service connection on any basis. See McLendon, 20 Vet. App. at 81. Accordingly, these matters are REMANDED for the following action: 1. Obtain any outstanding private or VA treatment records and associate all such records with the electronic claims file. The AOJ should undertake the appropriate efforts to obtain and associate with the claims file any outstanding service treatment records, as well as any relevant and outstanding VA or private treatment records. If any records sought are not obtained, a written statement to that effect should be incorporated into the record 2. After the above development and any additionally indicated development has been completed, schedule the Veteran for a VA examination with a qualified gynecologist, different from the June 2017 examiner, to determine the nature and etiology of the Veteran's claimed vaginal disability, to include residuals of colporrhaphy, vulvar disability, to include residuals of perineoplasty, and anal disability, to include residuals of sphincteroplasty. The entire claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide an opinion as to following: a) Whether the Veteran has a current disability b) whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's vaginal, vulvar, and anal disabilities are due to or otherwise causally or etiologically related to her military service, to include her September 2006 in-service surgery. The examiner must address all relevant lay and medical evidence of record, including but not limited to the following: (1) The Veteran's August 2017 lay statement that she continues to suffer severe pelvic pain, rawness, irritation, discomfort from permanent vaginal stitches, frequent urination during the day and night, urinary leakage, frequent urinary tract infections, exploding bowel movements, and loss of sexual intercourse; (2) The Veteran's January 2020 Board hearing testimony The examiner must address all relevant diagnoses of record during the entire period on appeal, including but not limited to the Veteran's vaginal, vulvar, anal, and urinary symptoms. The examiner must also address whether the Veteran's loss of sexual intercourse is causally related to her current vaginal, vulvar, anal, or urinary conditions. The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. 3. After the above development and any additionally indicated development has been completed, schedule the Veteran for a VA psychiatric examination with an appropriate clinician to determine the nature and etiology of the Veteran's claimed acquired psychiatric disability. The entire claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's acquired psychiatric disability, to include anxiety, depression, or any other acquired psychiatric diagnosis, is due to or otherwise causally or etiologically related to her military service, to include her service-connected urinary disability and the residuals from her September 2006 in-service surgeries of the vagina, vulva, and anus and the following symptoms: (a) severe pelvic pain, rawness, and irritation; (b) permanent vaginal stitches placed during her September 2006 in-service surgery which continue to cause her discomfort; (c) frequent urination throughout the day and night, urinary leakage, and frequent urinary tract infections; and (d) loss of use of a sexual organ as a result of these symptoms. In offering these assessments, the examiner must not only discuss the disorders diagnosed on current examination, but also any psychiatric disorder or disability diagnosed during this appeal. The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Marsdale 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.