Citation Nr: 21065477 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 19-00 743A DATE: October 26, 2021 ORDER The previously disallowed claim for entitlement to service connection for fibroid tumors as secondary to anemia is reopened. The previously disallowed claim for entitlement to service connection for anemia is reopened. Entitlement to service connection for anemia is granted. REMANDED Entitlement to service connection for fibroid tumors as secondary to anemia is remanded. FINDINGS OF FACT 1. In a September 2005 rating decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran's claim of entitlement to service connection for fibroid tumors. The Veteran was notified of this denial, and informed of her appellate rights, but she did not appeal. 2. Evidence received since the prior final September 2005 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for fibroid tumors as secondary to anemia and raises a reasonable possibility of substantiating the claim. 3. In a June 2009 rating decision, the AOJ denied the Veteran's claim of entitlement to service connection for anemia. The Veteran was notified of this denial, and informed of her appellate rights, but she did not appeal. 4. Evidence received since the prior final June 2009 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for fibroid tumors and raises a reasonable possibility of substantiating the claim. 5. The evidence of record establishes continuity of symptomatology of the Veteran's anemia since service. CONCLUSIONS OF LAW 1. The September 2005 denial of entitlement to service connection for fibroid tumors is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The evidence submitted subsequent to the September 2005 final rating decision is new and material, and the issue of entitlement to service connection for fibroid tumors as secondary to anemia is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The June 2009 denial of entitlement to service connection for anemia is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 4. The evidence submitted subsequent to the June 2009 final rating decision is new and material, and the issue of entitlement to service connection for anemia is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for entitlement to service connection for anemia have been met. 38 U.S.C. § 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from August 1989 to October 1990. This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision dated July 2015 issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed. A Board video hearing was held before the undersigned Judge in July 2020. The hearing transcript has been associated with the Veteran's file. Claims to Reopen The Veteran seeks entitlement to service connection for fibroid tumors and anemia. The AOJ denied the Veteran's claim for fibroid tumors in a September 2005 rating decision and denied the Veteran's claim for anemia in a June 2009 rating decision. The Veteran did not appeal these denials and they became final. 38 C.F.R. § 20.1103. As such, the claims may be reopened only if new and material evidence has been secured or presented since the last final rating decision. 38 U.S.C. § 7105. As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 20.1105. Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. 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. 38 C.F.R. § 3.156(a). The evidence received since the September 2005 rating decision includes evidence that is both new and material to the claim for service connection for fibroid tumors. See 38 C.F.R. § 3.156. Indeed, the record since the September 2005 rating decision includes a July 2020 hearing transcript that contains hearing testimony from the Veteran regarding her fibroid tumors. This is new as it was not previously of record. Additionally, it is material as it is related to the third prong of service connection, a connection between the current disability and the service-connected disability. The claim is reopened. Additionally, the evidence received since the June 2009 rating decision includes evidence that is both new and material to the claim for service connection for anemia. See 38 C.F.R. § 3.156. Indeed, the record since the June 2009 rating decision includes a July 2020 hearing transcript that contains hearing testimony from the Veteran regarding her anemia. This is new as it was not previously of record. Additionally, it is material as it is related to the third prong of service connection, a connection between the active duty service and the current disability. The claim is reopened. SERVICE CONNECTION Establishing service connection generally requires competent evidence showing: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §3.303(d). Certain chronic diseases, including anemia, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§1110, 1112, 1113, 1137; 38 C.F.R. §§3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. §5107; 38 C.F.R. §3.102. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for anemia The Veteran claims entitlement to service connection for anemia. Following a thorough review of the Veteran's medical records, the Board finds that she is entitled to an award of service connection. The Veteran has a current diagnosis of anemia. See VA Examination dated July 2015. Therefore, the Veteran has satisfied the first prong of service connection, the existence of a current disability. The Board notes that anemia is an enumerated condition under 38 C.F.R. § 3.309(a); therefore, service connection may be established by evidence of continuity of symptomatology since service. Walker, 708 F.3d 1331. Turning to the second prong of service connection, the Veteran contends that she began experiencing anemia while in service. In her July 2020 hearing, the Veteran testified that the symptoms she was currently experiencing and had been experiencing while in service and since being discharged included chronic fatigue. The Veteran also stated that each month during her service, she had to go to sick hall because her periods were so extreme and heavy. She was prescribed 800 milligrams of Ibuprofen during those times. She noted that she could sleep for 10 hours and it was still not enough rest. Throughout the day, it was very difficult to function, think clearly, and move about because often times her muscles ached because of the fatigue from the anemia. She noted that she was not currently employed because it had been difficult to maintain employment because of chronic fatigue and falling asleep at her desk or not being able to adhere to deadlines within her job classification. Additionally, her current treatment, taking Faradin twice a day, caused extreme constipation. She also had to go to VA and get iron infusions for at least a six-month period on a weekly basis. She stated that she had not been treated for anemia prior to going into the military. Therefore, the Board finds that the Veteran has satisfied the second prong of service connection for anemia: evidence of an in-service disease or injury. Multiple statements from friends who have known the Veteran for many years, and the Veteran's mother, corroborate that she experienced heavy menses resulting in fatigue, iron injections, and a blood transfusion. One of these statements supports the existence of these symptoms since the late 1980s. Private treatment records show the Veteran reported having "anemia all her life." See March 2004 treatment record. The Veteran identified and provided releases for multiple private providers who treated her in the early 90s shortly after separation from service. VA attempted to obtain these records; unfortunately, those attempts were unsuccessful as many of the records had been destroyed or lost over the years. A May 2004 private hospital discharge summary confirmed a history of blood transfusions. A January 2005 private hematology evaluation for "long-standing (chronic) anemia." A February 2005 private treatment record diagnoses "recurrent heavy menorrhagia leading to severe iron deficiency." Turning next to evidence of a causal relationship between the present disability and anemia during service, the Board finds the weight of the medical evidence supports a nexus. In reaching this determination, the Board finds that the Veteran's medical records show that the Veteran currently has a diagnosis of anemia which was incurred in service. The Veteran is competent to testify that she experienced symptoms of anemia within one year of separating from service and has experienced anemia ever since service. Charles v. Principi, 16 Vet. App. at 374. Medical and lay evidence supports a history of longstanding chronic anemia due to menorrhagia that dates back to service. The Board finds no reason to doubt her credibility on this matter. Thus, continuity of symptomatology is shown under 38 C.F.R. § 3.303(b) has been established. Service connection for anemia has been established. 38 C.F.R. § 3.303(b). REASONS FOR REMAND Entitlement to service connection for fibroid tumors as secondary to anemia is remanded. Although the Board regrets the additional delay, the Veteran's remaining claim must be remanded before the Board is able to make a determination on the merits. Specifically, the Board finds that additional supporting evidence is required in developing the Veteran's claim. In her July 2020 hearing, the Veteran stated that she was initially diagnosed with fibroid tumors in 1992. She believed that they were related to her anemia. She was initially diagnosed at a facility in Clinton, Maryland in 1992. She has attempted to obtain those records; however, the records had already been destroyed. It was hard for her to function and live because of the fibroids and the bleeding. Based on the size and number of tumors, the doctor who diagnosed her in 1992 stated that they had been there for at least two years, meaning they could have been present when she was in service. The Veteran also stated that each month during her service, she had to go to sick hall because her periods were so extreme and heavy. She was prescribed 800 milligrams of Ibuprofen during those times. It was her understanding that heavy bleeding was a symptom of fibroid tumors. She believed that her fibroid tumors were secondary to her anemia. The Veteran has not undergone a VA examination regarding this claim. The Board finds that the low threshold is met here and VA's duty to provide a VA examination is triggered. McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is an indication that the Veteran experienced fibroid tumors during the appeal period and that they may be related to her now service-connected anemia. Thus, remand is required. Accordingly, the matter is REMANDED for the following action: 1. Request a medical opinion addressing the Veteran's fibroid tumors. In-person examination is not required unless deemed necessary by the examiner. Based upon a review of the entirety of the claims file, the examiner is requested to provide an opinion as to the following questions: (a.) Please identify any fibroid tumors present at any time since the date the Veteran filed her claim (March 12, 2015). (b.) Is it as least as likely as not that her fibroid tumors had their onset in service or are otherwise related to injury or disease in service? (c.) Is it at least as likely as not (probability of 50 percent or greater) that the Veteran's anemia caused her fibroid tumors? (d.) Is it at least as likely as not (probability of 50 percent or greater) that the Veteran's anemia aggravated (worsened beyond the natural progression) her fibroid tumors? Explanations for all opinions must be provided. In providing the requested rationale, the examiner is asked to cite to the pertinent evidence of record, including clinical records and the Veteran's statements regarding the onset of her symptoms. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Minock 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.