Citation Nr: 21073334 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 18-24 278 DATE: December 8, 2021 REMANDED The claim of entitlement to service connection for gynecological conditions is remanded. The issue of whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for headaches is remanded. The issue of whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for an acquired psychiatric disorder is remanded. The issue of whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for scoliosis is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Army from October 1979 to January 1981. The instant matter is on appeal from an April 2016 rating decision. In October 2021, the Veteran testified before the undersigned in a virtual hearing. A transcript of the proceedings has been associated with the record. 1. The claim of entitlement to service connection for gynecological conditions is remanded. The Veteran asserts entitlement to service connection for gynecological conditions. Initially, the Board notes that this issue was previously denied in a February 2003 rating decision. The April 2016 rating decision on appeal adjudicated the issue of whether new and material evidence had been received sufficient to reopen the claim of entitlement to service connection for gynecological conditions. Within one year of the February 2003 rating decision, however, VA was in constructive possession of new VA-generated treatment records pertaining to the Veteran's claimed gynecological conditions. Specifically, the February 2003 rating decision denied on the grounds that the Veteran did not have a present diagnosis, but the VA treatment records shortly thereafter reflect abnormal menstrual symptoms and premature bleeding. A Pap smear was taken at that time, and the Veteran was subsequently diagnosed with bacterial vaginosis. These new records establish at least one diagnosis relevant to the Veteran's claim of entitlement to service connection for gynecological conditions. Despite VA's constructive possession of these treatment records, the record does not reflect that the issue was readjudicated in light of the additional evidence. Accordingly, the Board finds that the February 2003 rating decision did not become final. See, e.g., Lang v. Wilkie, 971 F.3d 1348 (2020); Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). Remand is necessary in the present circumstance to obtain a VA examination to assess the precise nature and etiology of the Veteran's claimed gynecological conditions. As noted above, the Regional Office initially denied this claim as the Veteran did not have a present diagnosis of a chronic disability. Service treatment records reflect a normal gynecological examination upon entrance to service. The Veteran had a yeast infection in January 1980 and reported irregular menstrual symptoms in April 1980. The Veteran's former spouse was diagnosed with gonorrhea around that time, thereby exposing the Veteran to the disease. She experienced symptoms of frequency in urination, discharge, and dizziness. She was exposed to the disease again in December 1980 by her former spouse. The Veteran also asserts that her gynecological conditions were caused by military sexual trauma. In the hearing before the undersigned, she described an attack by two civilians during service. Post-service treatment records note a history of sexual assault, though different estimated timeframes for the attack. Some records indicate that it took place just before her entrance into service while another record notes that it was during the initiation process of the military. After discharge, in January 1982, medical records reflect that she had a history of venereal disease in service and experienced some dysuria and irregular menstrual cycles. Subsequent post-service treatment records reflect numerous instances of yeast infections, bacterial vaginosis, trichomonas vaginalis and abnormal menstrual symptoms. A March 2005 Pap smear additionally noted atypical squamous cells from the cervix. An October 2007 CT revealed a mass in the cervix. There was concern that she had an ovarian cyst due to reports of right lower quadrant pain and an abnormal menstrual cycle. In her hearing before the undersigned, she reported ongoing pain in the area. In sum, the Veteran began to experience changes in her menstrual cycle during service, and her former spouse repeatedly exposed her to venereal diseases. The Veteran also described sexual trauma around the beginning of her service, though the precise date is unclear. She continued to have fungal and bacterial infections, as well as complaints of abnormal or irregular menstrual cycles, after her separation. Based upon this, there is at least an indication that her gynecological conditions may be related to her active duty service. Accordingly, remand is necessary in order to obtain a VA examination on this issue. See McLendon v. Nicholson, 20 Vet. App. 79, 82-3 (2006). 2. The issues of whether new and material evidence has been received sufficient to reopen the claims of entitlement to service connection for headaches, an acquired psychiatric disorder, and scoliosis are remanded. Regarding the remaining claims on appeal, the Veteran submitted a timely notice of disagreement with the July 2016 decision denying such benefits, but a statement of the case has not yet been issued. Around that time, the Veteran obtained new representation, and the attorney did not have access to her complete claims file despite multiple requests for production. As a result, the attorney filed a Notice of Disagreement in January 2017, but the Regional Office rejected this as it did not specify the decision with which he disagreed. In February 2017, the attorney resubmitted a Notice of Disagreement as to all issues and requested an informal telephonic conference. A conference was not scheduled, and a Statement of the Case was not issued. The attorney's Privacy Act request was fulfilled in September 2017. The Board finds that the February 2017 Notice of Disagreement is a timely appeal of all previously decided issues, including the aforementioned new and material evidence claims. Thus, a remand is required for the AOJ to issue a Statement of the Case for these claims. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: 1. Send the Veteran and her representative a Statement of the Case that addresses the issues of whether new and material evidence has been received sufficient to reopen the claims of entitlement to service connection for headaches, an acquired psychiatric disorder, and scoliosis. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. 2. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). All attempts to contact the Veteran should be documented in the record. 3. Conduct any indicated development on the issue of the Veteran's reported military sexual trauma, to include a determination as to whether such occurred during military service or immediate before her induction. 4. Once the aforementioned evidentiary development is complete, schedule the Veteran for a VA examination to assess the nature and etiology of claimed gynecological conditions. The examiner should review the entire claims file, including a copy of this remand. The examiner must consider the Veteran's lay reports of observable symptomatology. After a thorough review of the record is complete, the examiner must respond to the following: (a.) List any and all gynecological conditions with which the Veteran has been diagnosed throughout the appellate period beginning January 2003. (b.) For each condition diagnosed, opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosis had its onset during active duty service, is related to an incident of service, or began within one year after discharge from active service. (c.) Please specifically discuss the Veteran's reported sexual trauma, her in-service gynecological symptoms, as well as her subjective reports of pain. The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 5. Following completion of the foregoing, the AOJ should review the record and readjudicate the claim on appeal. If it remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and her representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.