Citation Nr: 21073768 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 19-08 325 DATE: December 10, 2021 ORDER New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for a left knee condition. New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for a left knee condition. New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for residuals of breast reduction surgery. Entitlement to service connection for scars, residuals of breast reduction, hysterectomy, and abdominoplasty surgeries, is granted. Entitlement to service connection for scars, residuals of hysterectomy, and abdominoplasty surgeries, is granted. REMANDED Entitlement to service connection for a left knee condition, to include as secondary to service-connected conditions, is remanded. Entitlement to service connection for a right knee condition, to include as secondary to service-connected conditions, is remanded. FINDINGS OF FACT 1. The claims of entitlement to service connection for left and right knee conditions were denied in a December 2007 rating decision because the Agency of Original Jurisdiction (AOJ) found there was no evidence of a diagnosed condition or evidence that a knee condition was incurred during service. As the Veteran did not appeal or submit new and material evidence within the applicable period, the decision became final. 2. In a March 2016 rating decision, the AOJ reopened and denied the Veteran's claims of entitlement to service connection for left and right knee conditions, finding that there was no evidence of a current diagnosed condition or evidence of a persistent disability during service. As the Veteran did not appeal or submit new and material evidence within the applicable period, the decision became final. 3. In a July 2017 rating decision, the AOJ declined to reopen the Veteran's claims of entitlement to service connection for left and right knee conditions, finding that new and material evidence had not been received. 4. In a September 2018 rating decision, the AOJ declined to reopen the Veteran's claims of entitlement to service connection for left and right knee conditions, finding that new and material evidence had not been received. 5. The evidence, which has been secured since the last final denial, regarding service connection for left and right knee conditions is both new and material. 6. The claim of entitlement to service connection for residuals of breast reduction surgery was denied in a July 2013 rating decision as the AOJ found that the Veteran's breast reduction was an elective surgery and was not advised by a doctor for the relief of a pathological condition or to precent possible future pathological consequences. As the Veteran did not appeal or submit new and material evidence within the applicable period, the decision became final. 7. The evidence, which has been secured since the last final denial, regarding service connection for residuals of breast reduction surgery is both new and material. 8. The Veteran has scars that were caused by her in-service breast reduction, hysterectomy, and abdominoplasty surgeries, which was performed for the treatment of pathological treatment. CONCLUSIONS OF LAW 1. The criteria for reopening the Veteran's claim of entitlement to service connection for a left knee condition have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. The criteria for reopening the Veteran's claim of entitlement to service connection for a left knee condition have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 3. The criteria for reopening the Veteran's claim of entitlement to service connection for residuals of breast reduction surgery have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 4. The criteria for service connection for scars, residuals of breast reduction surgery, hysterectomy, and abdominoplasty surgeries, have been met. 38 U.S.C. §§ 1110, 1131, 1154; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1984 to September 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions, dated July 2017 and September 2018, issued by a Department of Veterans Affairs (VA) regional office. In December 2021, the Veteran testified via video conference before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript will be associated with the claims file. As an initial matter, the Board notes that, in the July 2017 rating decision, the AOJ declined to reopen the Veteran's claims of entitlement to service connection for left and right knee conditions, finding that new and material evidence had not been received. In May 2018, additional evidence was associated with the claims file and the Veteran asked that he claims be reopened. In a September 2018 rating decision, the AOJ again declined to reopen the Veteran's claims, finding that new and material evidence had not been received. Thereafter, in October 2018, the Veteran filed a Notice of Disagreement (NOD). As additional evidence was secured and the Veteran requested that her claims be reopened within the applicable time period, the Board finds that the July 2017 rating decision did not become final and is the rating decision on appeal before the Board. See 38 C.F.R. § 3.156(b). Additionally, the Board notes that, generally, when a claim is disallowed, a claim based upon the same factual basis may not be considered absent new and material evidence or clear and unmistakable error. See 38 U.S.C. § 5108, 5109A, 7104(b), 7111. The "factual basis" of a claim is the veteran's disease or injury, not the symptoms thereof, and a properly diagnosed disease or injury is not the same factual basis as a different distinctly diagnosed disease or injury, and therefore, claims based upon different distinctly and properly diagnosed diseases or injuries are not considered the same claim. See Boggs v. Peake, 510 F.3d 1330, 1335 (Fed. Cir. 2008). Here, the Board notes that the record indicates that the Veteran previously sought service connection for residuals of breast reduction surgery. As discussed above, the claim was denied in a July 2013 rating decision. In June 2018, the Veteran filed a claim of entitlement to service connection for scars due to breast reduction surgery. See June 2018 VA Form 21-526. As any scars due to breast reduction surgery would be a residual of such surgery, the Board finds that the Veteran's claim of entitlement to service connection for scars due to breast reduction surgery arises from the same factual basis as the previously denied claim of entitlement to service connection for residuals of breast reduction surgery. As such, the claim may not be considered absent new and material evidence or clear and unmistakable error. See 38 U.S.C. §§ 5108, 5109A, 7104(b), 7111. New and Material Evidence Generally, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.200. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343 (2000). If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the appellant in developing the facts necessary for the claim have been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). 1. New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for a left knee condition. 2. New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for a right knee condition. The record reflects that the Veteran was last denied service connection for bilateral knee conditions in a March 2016 rating decision, with the AOJ finding that there was no evidence of a current diagnosed condition or evidence of a persistent disability during service. The Veteran did not appeal the decision and accordingly that decision became final. 38 C.F.R. § 20.1103. Since the last final denial, VA treatment records noting complaints of bilateral knee pain and the use of cane for ambulation have been associated with the claims file. See Columbia VA Medical Center (VAMC) records, received July 2017, January 2019, and July 2020 in CAPRI. Additionally, the Veteran underwent a VA examination in May 2018, in which the examiner noted a diagnosis of left knee arthritis and documented an abnormal range of motion (ROM) bilaterally, with pain. See May 2018 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ). The Board finds this evidence to be "new" as it was not previously of record. Further, the Board finds this evidence to be material as it concerns an unestablished fact as it pertains to a current disability. Given that there is new and material evidence, the claim is reopened. Notably, the claims require further development, which is addressed in the remand section below. 3. New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for residuals of breast reduction surgery. The record reflects that the Veteran was originally denied service connection for residuals of breast reduction surgery in a July 2013 rating decision, with the AOJ finding that such surgery was elective in nature and was not was not advised by a doctor for the relief of a pathological condition or to prevent possible future pathological consequences. The Veteran did not appeal the decision and accordingly that decision became final. See 38 C.F.R. § 20.1103. The record also reflects that, in a September 2018 rating decision, from which this appeal arises, the AOJ denied the Veteran's claim of entitlement to service connection for scars, secondary to breast reduction surgery, finding that as the breast reduction was not service-connected, scars from surgery could not be service-connected. However, as discussed above, any scars due to breast reduction surgery would be a residual of such surgery, and as such, the Veteran's claim of entitlement to service connection for scars due to breast reduction surgery arises from the same factual basis as the previously denied claim of entitlement to service connection for residuals of breast reduction surgery. Therefore, new and material evidence is required. See 38 U.S.C. §§ 5108, 5109A, 7104(b), 7111. Since the last final denial, the Veteran submitted a lay statement from a nurse that performed the consultation prior to her breast reduction surgery, in which the nurse stated that such surgery was performed as the Veteran experienced back pain and neck spasms due to her large breasts and small frame. See November 2017 J. Ector Statement. The Board finds this evidence to be "new" as it was not previously of record. Further, the Board finds this evidence to be material as it concerns an unestablished fact as it pertains to the nature and purpose of the Veteran's in-service breast reduction surgery. Given that there is new and material evidence, the claim is reopened. Service Connection As an initial matter, as discussed above, the Veteran filed a claim of entitlement to service connection for scars due to breast reduction surgery. See June 2018 VA Form 21-526. However, it is well settled that when a veteran makes a claim, they are seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, the record indicates that, in addition to scars from her breast reduction surgery, the Veteran has scars related to a hysterectomy and abdominoplasty. See June 2012 VA Scars DBQ. The Board also notes that in her June 2018 application, as well as in the October 2018 NOD, the Veteran stated that she was seeking service connection for all scars, not just those related to her breast reduction surgery. The Veteran reiterated this contention in the December 2021 Board hearing. Accordingly, the Board finds it appropriate to recharacterize the Veteran's claim as ones of entitlement to scars, residuals of breast reduction, hysterectomy, and abdominoplasty surgeries. 4. Entitlement to service connection for scars, residuals of breast reduction, hysterectomy, and abdominoplasty surgeries, is granted. The Veteran contends that she is entitled to service connection for scars resulting from an in-service breast reduction, hysterectomy, and abdominoplasty surgeries. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, established that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Here, the record indicates that the Veteran underwent a bilateral breast reduction, hysterectomy, and abdominoplasty during service. See STR-Medical. The record also indicates that the Veteran's breast reduction surgery was performed, in part, because the size of her breasts caused her back pain and neck spasms. See November 2017 J. Ector Statement. The record also indicates that the Veteran's hysterectomy was performed, in part, due to fibroids. See STR-Medical. Additionally, in the December 2021 Board hearing, the Veteran testified that her abdominoplasty was performed, in part, due to recurrent infections. Moreover, the Veteran currently has residuals from the breast reduction, hysterectomy, and abdominoplasty; specifically, the Veteran has painful scars from each of these surgeries. See June 2012 VA Scars DBQ. Based on the above, the Board finds that the preponderance of the evidence supports the finding that the Veteran's in-service breast reduction surgery was performed for the purpose of alleviating back and neck conditions, and that the Veteran possesses scars as a residual of such surgery. As such, the claim of entitlement to service connection for scars, residuals of breast reduction, hysterectomy, and abdominoplasty surgeries, is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND As an initial matter, the Board notes that VA is required to consider all theories of entitlement to VA benefits, including via secondary service connection, that are either raised by the claimant or reasonably raised by the record. See Schroder v. West, 212 F. 3d 1265, 1271 (Fed. Cir. 2000); Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008). Here, the Board notes the Veteran has asserted that her bilateral knee conditions are related to her service-connected foot conditions. See August 2020 Correspondence. Accordingly, the Board finds it appropriate to recharacterize the Veteran's claims to include as secondary to service-connected conditions. 1. Entitlement to service connection for a left knee condition, to include as secondary to service-connected conditions, is remanded. 2. Entitlement to service connection for a right knee condition, to include as secondary to service-connected conditions, is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to allow the AOJ to conduct additional development. First, a remand is necessary as the evidence indicates that there may be relevant medical records, of which VA is aware, that are not associated with the electronic claims file. Specifically, the record indicates that the Veteran receives treatment from Midtown Family Medicine and Saluda Pointe Family Medicine. However, only excerpts of records relating to such treatment have been associated with the claims file, and no records relating to such treatment have been associated with the claims file since February 2013. See Midtown Family Medicine records, received September 2012; Saluda Pointe Family Medicine records, received February 2013. Additionally, the Veteran's VA treatment records indicate that she receives treatment at Moncrief Army Health Clinic. See Columbia VAMC records. However, no records relating to such treatment have been associated with the claims file. As such, a remand is warranted to allow the AOJ to obtain outstanding pertinent medical records. See 38 U.S.C. §§ 4103(a), (b)(1), 5103A; 38 C.F.R. § 3.159(c), (e); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992); Bell v. Derwinski, 2 Vet. App. 611 (1992). Second, a remand is necessary to obtain an adequate opinion regarding the nature and etiology of the Veteran's claimed bilateral knee conditions. In May 2018, the Veteran underwent a VA examination in which the examiner provided a sole diagnosis of left knee arthritis. Ultimately, the examiner opined that the Veteran's left knee condition was less likely than not related to her active duty service. In support of this opinion, the examiner stated that, while the Veteran did complain of left knee pain during service, there was insufficient medical evidence to show continuous chronic care or treatment of the left knee, noting that the Veteran complained of left knee pain in 1989 but there were no more complaints until 2012. See May 2018 VA Knee and Lower Leg Conditions DBQ; May 2018 VA Medical Opinion DBQ. However, while the Veteran's service treatment records (STRs) reveal complaints of left knee pain in 1989, they also document a report of bilateral knee pain in May 2007, and her separation examination notes that she experiences bilateral knee pain, crepitus, and popping. See STR-Medical. As such, the May 2018 opinion appears to be based on an inaccurate factual premise and, therefore, is inadequate. See Reonal v. Brown, 4 Vet. App. 458 (1993). Further, an opinion is inadequate when, as indicated here, the examiner does not consider the Veteran's prior medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Additionally, as noted above, potentially pertinent private medical records have not been associated with the claims file. As such, the May 2018 medical opinion is inadequate as the examiner was unable to consider the Veteran's prior medical history. See id. Moreover, the examiner did not address the nature or etiology of the Veteran's claimed right knee condition, nor did he address service connection on a secondary basis. As such, the May 2018 examination cannot be considered adequate to the extent it ignores such. For these reasons, the Board finds the May 2018 opinion to be inadequate for adjudication purposes. As such, a remand is necessary to obtain an adequate opinion regarding the nature and etiology of the Veteran's claimed lower back condition. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the matters are REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the electronic claims file any outstanding pertinent medical records, whether VA or private, to include records relating to treatment at Moncrief Army Health Clinic, Midtown Family Medicine, and Saluda Pointe Family Medicine, as well as records relating to treatment at Columbia VAMC from April 2020 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. After completing the development above, and any additional development warranted by the record, schedule the Veteran for a VA examination with an appropriate clinician regarding the nature and etiology of her claimed bilateral knee conditions. The entire claims file must be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations, to include an X-ray or MRI, should be conducted. The examiner is asked to: (a.) Obtain the Veteran's detailed lay history, including onset and progression of symptomatology and employment. (b.) For each diagnosed knee condition, provide the following opinions: i. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service. ii. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition was caused by a service-connected condition. iii. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition underwent an incremental increase (aggravated), regardless of permanence, due to a service-connected condition. (c.) In formulating the requested opinions, the examiner is asked to consider and specifically address: i. The Veteran's lay history, including reports that she experienced bilateral knee pain throughout service that was self-treated with over-the-counter medication; ii. The Veteran's separation examination, noting reports of bilateral knee pain, crepitus, and popping; iii. The January 2019 statement from F. Abney, the Veteran's former supervisor, indicating that the Veteran reported experiencing pain, stiffness, and inflammation of her knees when she was hired in November 2007, and that throughout the four years of her employment, he observed occasional limping and use of a knee brace; and iv. The August 2020 VA examiner's statement that in-service activities of pole climbing, use and transportation of heavy equipment, and other rigors of training have a high potential of causing damage to the lower extremities. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that her reports must be taken into account in formulating the requested opinions. The examiner is also reminded that noting that a condition did not manifest in service as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 3. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, Associate 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.