Citation Nr: 21065001 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 18-47 328 DATE: October 22, 2021 ORDER The petition to reopen the claim of entitlement to service connection for chronic residuals of ovarian cancer is denied. The petition to reopen the claim of entitlement to special monthly compensation (SMC) based on the anatomical loss of a creative organ is denied. FINDINGS OF FACT 1. A March 2014 rating decision implicitly reopened and denied a claim for service connection for ovarian cancer (and residuals from ovarian cancer). VA notified the Veteran of this decision and her appellate rights in March 2014. She did not file a notice of disagreement (NOD) or submit new and material evidence within the following year and the decision became final. 2. Evidence submitted since the March 2014 rating decision to reopen the claim of entitlement to service connection for chronic residuals of ovarian cancer is either cumulative or redundant, or does not relate to an unestablished fact necessary to substantiate the claim. 3. A March 2014 rating decision implicitly reopened and denied a claim for service connection for loss of use of a creative organ. VA notified the Veteran of this decision and her appellate rights in March 2014. She did not file an NOD or submit new and material evidence within the following year and the decision became final. 4. Evidence submitted since the March 2014 rating decision to reopen the claim of entitlement to SMC based on the anatomical loss of a creative organ is either cumulative or redundant, or does not relate to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The criteria for reopening the claim for entitlement to service connection for chronic residuals of ovarian cancer have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104 (a), 3.156. 2. The criteria for reopening the claim for entitlement to SMC based on the anatomical loss of a creative organ have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104 (a), 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1983 to July 1991. The Board thanks the Veteran for her service to our country. The Veteran testified before the undersigned Veterans Law Judge during an April 2021 hearing. A transcript of the hearing is in the record before the Board. New and Material Evidence A claim which has been finally denied in an unappealed rating decision generally may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). An exception to this rule exists when new and material evidence is secured with respect to a claim which has been disallowed, in which case the Secretary shall reopen the claim and review the prior disposition. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. Id. The Court of Appeals for Veterans Claims has held that the phrase "raises a reasonable possibility of establishing the claim" must be viewed as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Id. Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternate theory of entitlement. Id. at 118. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principle, 3 Vet. App. 510, 513 (1992). Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. The Board may not then proceed to undertake an examination of the merits of the claim. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). Regardless of whether the RO found new and material evidence to reopen a claim, the Board is not bound by such a determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In this case, the Board will therefore undertake a de novo review of the petitions to reopen the claims for service connection for chronic residuals of ovarian cancer and SMC based on the anatomical loss of a creative organ. 1. New and material evidence to reopen a claim for service connection for chronic residuals of ovarian cancer. 2. New and material evidence to reopen a claim for SMC based on the anatomical loss of a creative organ. The March 2014 rating decision implicitly reopened and denied a claim for service connection for ovarian cancer (and residuals from ovarian cancer). The rating decision stated that the evidence did not show an event, disease or injury in service. The Veteran's service treatment records did not contain complaints, treatment or diagnosis for this disorder. The evidence did not show that the Veteran's disease developed to a compensable degree within the specified time period after release from service to qualify for the presumption of service connection. Further, at the time of this decision, there was no competent evidence of record indicating a relationship between the Veteran's residuals of ovarian cancer and service. The March 2014 rating decision also implicitly reopened and denied a claim for service connection for loss of use of a creative organ. The rating decision stated that the evidence did not show an event, disease or injury in service. The Veteran's service treatment records did not contain complaints, treatment or diagnosis for this disorder. VA notified the Veteran of this rating decision and her appellate rights in March 2014. She did not file an NOD or submit new and material evidence within the following year and the rating decision became final. The evidence of record at the time of the March 2014 rating decision included the Veteran's service treatment records, VA treatment records, post-service private treatment records and lay statements from the Veteran and a friend. Specifically, in statements dated in July 2011 and April 2013 the Veteran variously asserted that her ovarian cancer was due to active duty pelvic inflammatory disease (PID) after being sexually assaulted, and risk factors including cervical atypia, long periods of infertility, miscarriages and preterm labor. She asserted that she sought treatment for several precancerous markers and conditions while on active duty. She stated that the warning signs for ovarian cancer were generally mild and dismissed by the patient and providers as other conditions, usually gastrointestinal in nature. In an August 2011 statement, the Veteran's friend stated that she was also a Marine and met the Veteran in the spring of 1984. She related that the Veteran told her she was having some female problems. The Veteran's friend did not recall exactly what they were. Evidence added to the record since the March 2014 rating decision includes VA CAPRI treatment records dated through January 2016 which do not link the Veteran's ovarian cancer to her active duty, or any events during active duty, and private medical records. Private gynecological treatment records dated in 2008 and 2015 from J.L.H, M.D., do not include any evidence or medical opinion linking the Veteran's ovarian cancer to her active duty, or any events during active duty. Other records from Dr. J.L.H. include results of 2015 genetic testing for hereditary cancer which were negative and identified no clinically significant mutation. An undated medical statement from a private physician, received in July 2021, relates that her office saw the Veteran for an annual gynecological evaluation in 2019, and that she saw the Veteran for an annual gynecological evaluation in June 2021. The physician states that she had extensively reviewed the Veteran's medical records. The Veteran underwent a total abdominal hysterectomy and bilateral salpingo-oophorectomy with pelvic lymph node dissection and peritoneal washings in August 2008. Prior to this time the Veteran experienced fertility issues. The physician stated that she thought that there was no disagreement that ovarian cancer was a very difficult diagnosis to make in the early stages and as a result this cancer was not usually diagnosed until physical problems were present. There was a possibility that this ovarian cancer with the multiple cyst formation in the ovaries may have had a significant impact on her fertility. Certainly, the removal of her tubes and ovaries ended her future fertility, and pushed early menopause and increased risk of osteoporosis. The physician states that she feels that the Veteran's prior surgery certainly saved her life but had an impact on her fertility and the quality of her life. This statement, although new, is too vague with respect to any unestablished fact to constitute new and material evidence; therefore, it does not serve to reopen the claim. The Board finds that the additional treatment records from Dr. J.L.H., the additional VA treatment records and the undated private medical statement are new in that they were not in the record at the time of the March 2014 rating decision. However, they are not material to either claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade, supra. Taken alone or together, they do not tend to show that the Veteran's ovarian cancer was incurred in service or manifest to a compensable degree within the applicable presumptive period. They also do not tend to show continuity of symptomatology or that the Veteran's ovarian cancer was otherwise etiologically related to an in-service injury or disease. Further, they do not tend to show that as a result of service-connected disability the Veteran has suffered the anatomical loss or loss of use of one or more creative organs. During the April 2021 hearing, and in correspondence received in August 2015February 2016 , the Veteran variously asserted that post-service genetic testing was negative for any genetic factors for ovarian cancer. She stated that her ovarian cancer was due to various incidents during active duty, including trichomoniasis that developed into PID after being sexually assaulted, injection of radioactive dye into her uterine and fallopian tubes to determine the cause of her infertility, exposure to hazardous materials used in the maintenance of CH46 aircraft, exposure to asbestos in an aircraft hanger where she worked for 6 years, and exposure to known HAZ-MAT carcinogens on a daily basis. The contentions the Veteran made after the March 2014 rating decision are not new to the extent that they merely repeat her prior contentions that her ovarian cancer was due to PID after the active duty sexual assault. Cumulative and redundant evidence cannot be new. 38 C.F.R. § 3.156 (a). Regarding the Veteran's additional contentions regarding active duty exposure to asbestos, hazardous materials and radioactive dye, the Board observes that new theories of entitlement are not a basis for reopening a claim, but if evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). As there is no new evidence supporting these theories, new and material evidence has not been provided. In this case, however, the record contains no new competent evidence which indicates that there may be an association between the residuals of ovarian cancer and the Veteran's active service. While the credibility of newly-submitted evidence is generally presumed, see Justus v. Principi, 3 Vet. App. 510, 513 (1992), this is not the case if the evidence is beyond the competence of the witness. In this case, the record reflects that the appellant lacks the competency to provide probative evidence of a link between residuals of ovarian cancer and an in-service event, injury, or disease. The crucial element missing at the time of the prior final denial was a nexus between a current disability and an in-service event, injury, or disease. The Board finds that the record does not establish that the appellant is competent to opine as to the etiology of her residuals of ovarian cancer because there is no adequate foundation in the current record to establish that he has the education, training, or clinical experience to offer a medical nexus opinion relative to the cause of such. The evidence submitted by the Veteran since the March 2014 rating decision, either by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate her claim for service connection for chronic residuals of ovarian cancer or her claim for SMC based on the anatomical loss of a creative organ. Therefore, the petition to reopen the claim of entitlement to service connection for chronic residuals of ovarian cancer and the petition to reopen the claim for SMC based on the anatomical loss of a creative organ must be denied. 38 C.F.R. § 3.156 (a). As new and material evidence has not been received sufficient to reopen either claim, the petitions to reopen the claims must be denied. 38 U.S.C. § 5108. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Davitian, 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.