Citation Nr: 21066778 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 16-53 809 DATE: November 2, 2021 REMANDED 1. The motion for reversal or revision of an August 1983 decision on the basis of clear and unmistakable error (CUE) in which the Board of Veterans' Appeals (Board) denied service connection for hypothyroidism is remanded. 2. The motion for reversal or revision of an August 1983 decision on the basis of clear and unmistakable error (CUE) in which the Board denied service connection for Stein-Leventhal syndrome is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1974 to July 1978. The Veteran (the moving party) has filed a CUE motion in May and June 2017 for revision or reversal of an August 1983 Board decision that denied service connection for hypothyroidism and Stein-Leventhal syndrome. At the outset, the Board notes that the Veteran has requested a hearing with respect to the appeal. The regulations governing motions to revise board decisions on the basis of CUE, under 38 C.F.R. § 20.1405(c)(1), (2), the Board may, for good cause shown, grant a request for a hearing for the purpose of argument; however, no testimony or other evidence will be admitted in connection with such a hearing. In August 2021, the Board sent a letter to the Veteran inquiring as to whether she would like to continue with a hearing regarding her Board CUE motion. That same month, the Veteran requested that her hearing request be withdrawn. The Board denied the CUE motion in a March 2019 decision. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a joint motion for remand (JMR) filed by the Secretary of VA and the Veteran (parties) in March 2021, the Court vacated the Board's March 2019 decision and remanded it for compliance with its instructions. In the JMR, the parties agreed that the Board must provide new, adequate reasons and bases with consideration of the evidence that service treatment records (STRs) were added to the record after the August 1983 Board decision. Additionally, the parties noted that the Board erred in determining the entrance and separation examination reports were not within the Veteran's claims file. The parties further noted the RO ultimately granted service connection for Stein-Leventhal syndrome as secondary to posttraumatic stress disorder due to military sexual trauma (MST) during service. Thus, the parties directed the Board to provide new, adequate reasons and bases addressing the entrance and separation examination reports of record, and MST suffered by the Veteran. The Veteran has a current pending appeal with regard to claims for earlier effective dates for the award of service connection for hypothyroidism and Stein-Leventhal syndrome. As the Veteran's attorney's April 2021 argument raises reconsideration of the August 1982 rating decision that initially denied service connection for hypothyroidism and Stein-Leventhal syndrome, the Board notes that a favorable decision on the earlier effective date claims will render moot the motion of CUE in the August 1983 Board decision, as any reconsideration under 38 C.F.R. § 3.156(c) will affect the finality of the August 1982 rating decision, and therefore also impact the finality of the Board's August 1983 decision that affirmed the August 1982 rating decision. See 38 U.S.C. § 7111, 38 C.F.R. § 3.156(c). However, before the Board can remand the Board CUE motion so that the RO can address the new argument that reconsideration of the August 1982 decision under 38 C.F.R. § 3.156(c) is warranted in the first instance, the requested development below is necessary. In the April 2021 correspondence, the Veteran's attorney stated that multiple STRs were received in December 2012, and that it was unclear whether the RO relied on those STRs for the basis of the grant for hypothyroidism and Stein-Leventhal Syndrome and thus the Board failed to address the potential applicability of section 3.156(c). That regulation states that, notwithstanding any other section in § 3.156, 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 and an award may be made effective on the date entitlement arose "or the date VA received the previously decided claim, whichever is later." 38 C.F.R. § 3.156(c)(3). Although the Veteran's attorney contends it was an error for the 2019 Board to not consider whether reconsideration under 38 C.F.R. § 3.156(c) was warranted, the Board points out that in the 2017 CUE Motion, the Veteran did not allege that the claims should be reconsidered under 38 C.F.R. § 3.156(c) based on newly associated service treatment or service personnel records. Therefore, the 2019 Board did not address this argument, as it was not raised at that time, and a CUE motion must be raised with specificity. Initially, the Board points out that STRs were part of the record at the time of the August 1982 rating decision and August 1983 Board decision. In that regard, in the August 1982 rating decision, the RO wrote that the STRs "present[ed] a rather complicated menstrual [history] and [diagnosis] of Stein-Leventhal polycystic ovarian disorder, pregnancy, and massive weight gain over 150 pounds following delivery, despite thyroid medication given to regulate the menses and weight problem." The 1982 RO also explained no definitive diagnosis of hypothyroid was confirmed while on active duty and, at one point, the Veteran weighed 296 pounds while on active duty. The September 1982 statement of the case documented that the RO had reviewed service medical records. The Board's 1983 findings of fact relating to the service treatment records are consistent with the June 1978 STR that noted the Veteran's medical history regarding her menses and assessment of anonovulation, as it was documented within this service treatment record that the Veteran presented with a "complex case [with] many inconsistencies," which is essentially the exact terminology used by the 1983 Board. The 1983 Board noted that at one point the Veteran weighed 296 pounds while on active duty, as documented in a March 1978 STR and is also consistent with STRs from 1974 to 1978 that documented extreme weight gain, and the Veteran being considered as obese. The 1983 Board noted the Veteran's 1978 service medical records indicate the Veteran had been taking thyroid medications since July 1977, consistent with the March 1978 STR that confirmed this exact fact. The 1983 Board also explained that during the Veteran's pregnancy in 1975-76, she gained 90 pounds, again, as documented in the March 1978 STR. The facts documented within the 1982 rating decision and 1983 Board decision could not have been documented without a review of the service treatment records. These findings give the impression that the RO and the Board reviewed all STRs and does not otherwise indicate that records were missing. This is not a situation where the 1982 RO and the 1983 Board provided cursory descriptions of the STRs. Although the Veteran contends that her complete STRs were not before the RO in August 1982, in contrast, the RO cited to the STRs in its decision and explained that the STRs revealed a complicated medical history regarding her menstrual and Stein-Leventhal disorder, which is consistent with what is documented within the STRs. The Board further notes the RO was not, at the time of the August 1982 decision, "required to provide a statement of reasons or bases as to its conclusions," including the evidence upon which it relied, see Evans v. McDonald, 27 Vet. App. 180, 189 (2014) (en banc) (citing Natali v. Principi, 375 F.3d 1375, 1381 (Fed. Cir. 2004)). Regarding the STRs, including entrance and separation examination reports, that were date stamped as received on December 3, 2012, these records were submitted by the Veteran at that time. Given the above arguments, the Board finds that clarification is needed as to the circumstances in which the Veteran obtained the STRs. In that regard, in May 1982, the Veteran's representative at that time wrote that he or she was submitting an application, incomplete service medical records, and medical records from Fairbanks Memorial. In an October 1983 VA Form 60-3288, "Request for and Consent to Release of Information from Claimant's Records," the Veteran typed, "Requ[e]st all my Military and VA Medical Records To be hand carried to me by my husband." When asked the name and address of the organization, agency, or individual to whom the information was to be released, there was a stamp showing, "Elizabeth Podoba, M.D., who was in obstetrics and gynecology, with a Channelview, Texas, address. Within this document, when asked the purpose for which the information was to be used, the Veteran typed, "To compare with hospital records being made now." Someone handwrote, "Released this date," which was "10.26.83," which would indicate that the records were released to the Veteran or her husband. Therefore, it appears that the Veteran was in possession of her original STRs since October 1983. Notably, a private treatment record from October of an unknown year noted "See Military records re ? pg vs. ovarian cyst." This shows that the private examiner reviewed STRs provided by the Veteran. The fact that no service treatment records are in the claims file until the Veteran submitted them, where it is clear from the August 1982 rating decision and the October 1983 Board decision that service treatment records were reviewed by both the RO and the Board, leads the current Board to conclude that there is a strong likelihood that the Veteran had her original service treatment records. But, again, as there are no copies of the service treatment records in the Veteran's claims file until the Veteran submitted them and that the service treatment records were released to the Veteran or her spouse in October 1983, this would indicate that the copies of service treatment records added to the file beginning in August 2011 may not be "official service department records that existed and had not been associated with the claims file when VA first decided the claim." 38 C.F.R. § 3.156(c) (italics added). In other words, these records may have been in the claims file at the time of the August 1982 rating decision and October 1983 Board decision. In light of the newly-raised argument that the Veteran's claim needs to be reconsidered under 38 C.F.R. § 3.156(c), and the documents noted above, it is first necessary to determine how the Veteran obtained the STRs, to include whether the documents she received in 1983 were the originals, and thus remand of the matter of CUE in the August 1983 Board decision is appropriate. As a result, the RO should obtain clarification from the Veteran, under penalty to perjury, where she obtained the service treatment records that she submitted in August 2011, December 2012, May 2013, March 2014, April 2014, November 2015, and October 2016. The matter is REMANDED for the following action: 1. The RO should request the Veteran submit a statement, under penalty of perjury, as to how she obtained the service treatment records that she submitted in August 2011, December 2012 (which include entrance and separation examination reports), May 2013, March 2014, April 2014, November 2015, and October 2016. The Veteran should also report whether the STRs that she has in her possession are the originals. The Boards points out to the Veteran to assist with her memory that there is an October 1983 VA Form 60-3288, Request for and Consent to Release of Information from Claimant's Records, in which the Veteran typed, "Requ[e]st all my Military and VA Medical Records To be hand carried to me by my husband." When asked the name and address of the organization, agency, or individual to whom the information was to be released, there was a stamp showing, "Elizabeth Podoba, M.D., who was in obstetrics and gynecology, with a Channelview, Texas, address. Within this document, when asked the purpose for which the information was to be used, the Veteran typed, "To compare with hospital records being made now." Someone handwrote, "Released this date," which was "10.26.83," which would indicate that the records were released to the Veteran or her husband. Additionally, a private treatment record from October of an unknown year shows that the examiner handwrote, "See Military records re ? pg vs. ovarian cyst," which shows the examiner reviewed service treatment records, which, presumably, were provided by the Veteran. 2. After completing the above, the case should be returned to the Board. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah Campbell, 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.