Citation Nr: 21065498 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-09 726 DATE: October 26, 2021 ORDER Relevant service records having been received, reconsideration of the claim of entitlement to service connection for a bilateral leg disability, to include shin splints, is granted. Relevant service connection having been received, reconsideration of the claim of entitlement to service connection for a bilateral foot disability is granted. New and material evidence having been submitted, reopening of the claim of entitlement to service connection for a hysterectomy is granted. New and material evidence having been submitted, reopening of the claim of entitlement to special monthly compensation (SMC) for loss of use of a creative organ is granted. REMANDED Entitlement to service connection for a bilateral leg disability, to include shin splints, is remanded. Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for a hysterectomy is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for varicose veins is remanded. Entitlement to service connection for a bilateral eye disability, to include loss of vision, is remanded. Entitlement to service connection for incontinence is remanded. Entitlement to service connection for hormonal issues is remanded. Entitlement to service connection for menopause is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a psychiatric disability, to include depression, is remanded. Entitlement to a compensable rating for a service-connected goiter is remanded. Entitlement to SMC based on loss of use of a creative organ is remanded. FINDINGS OF FACT 1. Since the October 2007 decision, official service department records relevant to the Veteran's claims for service connection for bilateral leg and foot disabilities have been received. 2. The evidence associated with the claims file since the October 2007 decision is not cumulative or redundant and raises a reasonable possibility of substantiating the claims for service connection for a hysterectomy and SMC based on loss of use of a creative organ. CONCLUSIONS OF LAW 1. The criteria for reconsideration of a previously denied claim for service connection for a bilateral leg disability are met. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2020). 2. The criteria for reconsideration of a previously denied claim for service connection for a bilateral foot disability are met. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2020). 3. The criteria for reopening a previously denied claim of service connection for a hysterectomy are met. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2020). 4. The criteria for reopening a previously denied claim for SMC based on loss of use of a creative organ are met. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1978 to June 1987, from February 1991 to July 1991, and from March 1992 to July 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2014 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Reconsideration Bilateral Leg and Foot Disabilities In a March 2004 rating decision, the RO denied service connection for a bilateral leg disability because the evidence did not show that the Veteran had a current leg disability or a leg disability during service. In an October 2007 rating decision, the RO determined that new and material evidence had not been received to reopen the Veteran's claim for service connection for a bilateral leg disability. The RO also denied service connection for a bilateral foot disability because the evidence did not show that the Veteran had a current bilateral foot disability or a foot disability during service. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement that new and material evidence must first be received. 38 C.F.R. § 3.156(c). In this case, the Veteran filed a request to reopen the claims in 2013. In March 2014, she submitted additional service treatment records, including a copy of her May 1998 retirement examination, which was not of record at the time of the March 2004 and October 2007 rating decisions. The May 1998 retirement examination report indicated that her feet were abnormal and that she had shin splints. The Board finds that evidence relevant. Therefore, pursuant to 38 C.F.R. § 3.156(c), reconsideration of the claims of entitlement to service connection for bilateral leg and foot disabilities is warranted. Claim to Reopen Hysterectomy and SMC In a March 2004 rating decision, the RO denied service connection for a hysterectomy and SMC based on loss of use of a creative organ because the evidence did not show that the Veteran had a hysterectomy during service or that her hysterectomy was related to service. In an October 2007 rating decision, the RO determined that new and material evidence had not been received to reopen the Veteran's claims for service connection for a hysterectomy and SMC. The Board finds that new and material evidence has been received to reopen the claims for service connection for a hysterectomy and SMC based on loss of use of a creative organ. A May 2008 VA treatment record noted that the Veteran had a hysterectomy in 2001 for ovarian cysts and heavy menstrual periods. In a March 2014 statement, the Veteran indicated that she believed that an abnormal PAP smear during service was the first indication of the ovarian cyst that led to her hysterectomy. The Board finds that evidence new and material. Therefore, the claims are reopened. REASONS FOR REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. The claims file includes VA treatment records from the Atlanta VA Health Care System dated from June 1998 to April 2004, and from the Birmingham VA Medical Center (VAMC) dated from May 2008 to December 2016, from April 2017 to April 2021, and from June 2021 to September 2021. VA treatment records dated from April 2004 to May 2008, December 2016 to April 2017, and from April 2021 to June 2021, have not been associated with the claims file. In addition, an April 2014 VA treatment record referenced a July 2007 sleep study located in VistA Imaging, VA's electronic healthcare records system, which has not been associated with the claims file. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See 38 C.F.R. § 3.159 (c)(2); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, a remand is required to obtain any outstanding VA treatment records. In addition, the Veteran reported receiving treatment though TRICARE, including at Fort McPherson; however, those records have not been associated with the claims file. Therefore, a remand is necessary so that an attempt can be made to secure them. Furthermore, the Board finds that a remand is necessary for VA examinations to determine the nature and etiology of the Veteran's claimed bilateral leg disability, bilateral foot disability, hysterectomy, hypertension, heart disability, and bilateral eye disability. See 38 C.F.R. § 3.159(c)(4) (2020); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). During the February 2021 Board hearing, the Veteran testified that she believed that her service-connected goiter resulted in a variety of problems, including hypothyroidism. This suggests that her disability has worsened since her most recent VA examination in July 2014. Therefore, the Board finds that a remand is necessary for an additional VA examination. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA, TRICARE, and private treatment records and associate them with the claims file, to include the following: a) VA treatment records dated from April 2004 to May 2008, from December 2016 to April 2017, and from April 2021 to June 2021. b) The report of a July 2007 sleep study located in VistA imaging. c) TRICARE treatment records, including from Fort McPherson. 2. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any bilateral leg disability that may be present, to include shin splints. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present leg disability manifested during active service or is etiologically related to the Veteran's active service, to include shin splints therein. A rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any bilateral foot disability that may be present. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present foot disability manifested during active service or is etiologically related to the Veteran's active service. In rendering the above opinion, the examiner should address a February 1996 service treatment record noting complaints of left foot pain; an April 1998 service treatment record noting a bone spur and pes planus; and the Veteran's May 1998 retirement examination noting an abnormality of the feet. A rationale for all opinions expressed must be provided. 4. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of her hysterectomy. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that the Veteran's hysterectomy was etiologically related to her active service. Specifically, the examiner should address whether any gynecological condition noted during the Veteran's active service was etiologically related to her ovarian cyst and need for a hysterectomy. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that the Veteran's hysterectomy was caused or aggravated by her service-connected goiter. A rationale for all opinions expressed must be provided. 5. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of her hypertension. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present hypertension manifested during active service, within one year of active service, or is etiologically related to the Veteran's active service. In rendering the above opinion, the examiner should address the following blood pressure readings during active service: 130/100 in July 1983; 143/95 and 130/90 in February 1996; and 126/90 at the emergency room at Fort Polk (undated). A rationale for all opinions expressed must be provided. 6. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any heart disability that may be present. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present heart disability manifested during active service or is etiologically related to the Veteran's active service. In rendering the above opinion, the examiner should address the Veteran's ECG at her May 1998 retirement examination noting a diffuse, nonspecific T-wave abnormality; and Dr. S.L.'s March 2021 opinion that the Veteran's coronary artery disease may have developed prior to her retirement. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that the Veteran's heart disease was caused or aggravated by her service-connected goiter. A rationale for all opinions expressed must be provided. 7. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any eye disability that may be present. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present eye disability manifested during active service or is etiologically related to the Veteran's active service. In rendering the above opinion, the examiner should address any eye complaints noted during the Veteran's active service, to include a sty in the right eye in September 1979; pink eye in the right eye in November 1994; and a left eye injury in June 1996. A rationale for all opinions expressed must be provided. 8. Then, schedule the Veteran for an appropriate VA examination to determine the current level of severity of all impairment resulting from his service-connected goiter. The claims file must be made available to and reviewed by the examiner. All indicated tests should be performed and all findings should be reported in detail. The examiner should provide all information required for rating purposes and describe the effects of the service-connected disability on the Veteran's ordinary activity, including her ability to work. 9. Confirm that the VA examination reports and all opinions provided comport with this remand and undertake any other development found to be warranted. 10. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mishalanie, 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.