Citation Nr: 21005582 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 11-26 655 DATE: February 2, 2021 ORDER The petition to reopen the claim of service connection for urinary incontinence, to include as secondary to service-connected total hysterectomy with bilateral salpingo-oophorectomy, is granted. The petition to reopen the claim of service connection for a back condition, to include as secondary to service-connected total hysterectomy with bilateral salpingo-oophorectomy, is granted. REMANDED Entitlement to service connection for urinary incontinence, to include as secondary to service-connected total hysterectomy with bilateral salpingo-oophorectomy, is remanded. Entitlement to service connection for a back condition, to include as secondary to service-connected total hysterectomy with bilateral salpingo-oophorectomy, is remanded. Entitlement to service connection for pelvic pain, to include as secondary to service-connected total hysterectomy with bilateral salpingo-oophorectomy, is remanded. Entitlement to service connection for recurring sebaceous cysts is remanded. Entitlement to a compensable rating for service-connected scars, resulting from the service-connected total hysterectomy with bilateral salpingo-oophorectomy, is remanded. FINDINGS OF FACT 1. A December 1998 rating decision denied service connection for urinary incontinence and a back condition. 2. The evidence associated with the claims file following the December 1998 denial of the Veteran’s claim for service connection for urinary incontinence and a back disability is new and material to the grounds of the prior denial. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim for service connection for urinary incontinence. 38 U.S.C. § 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. New and material evidence has been received to reopen a claim for service connection for a back condition. 38 U.S.C. § 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1979 to July 1985 and from January 1988 to May 1998. These matters come before the Board of Veterans’ Appeals (Board) on appeal from February 2010, March 2010, and June 2013 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held in this matter in September 2020 before the undersigned Veterans Law Judge, and a transcript of the proceedings is associated with the claims file. During the Board hearing, the Veteran clarified that she was not seeking an increased rating for her service-connected residual scar due to the excision of a sebaceous cyst – her claim was for service connection for sebaceous cysts, which she states are recurring. As such, the Board has re-characterized this particular claim as noted above. New and Material Evidence VA may reopen and review a claim that has been previously denied if new and material evidence is submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. Material evidence is evidence that, 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 final 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). The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material evidence has been received to reopen claim of entitlement to service connection for urinary incontinence, to include as secondary to service-connected total hysterectomy with bilateral salpingo-oophorectomy. The Board finds that new and material evidence regarding the Veteran’s urinary incontinence has been received since the December 1998 denial, to include VA treatment records from the Central Texas VAMC; private treatment records; additional lay evidence; VA examinations in May 2012, April 2019, and August 2019; and, testimony from a September 2020 Board hearing. This new evidence relates to an unestablished fact necessary to substantiate the claim. Accordingly, the Board finds that the threshold for reopening the claim has been met, and the claim for service connection for urinary incontinence is reopened. 2. Whether new and material evidence has been received to reopen claim of entitlement to service connection for a back condition, to include as secondary to service-connected total hysterectomy with bilateral salpingo-oophorectomy. The Board finds that new and material evidence regarding the Veteran’s back disability has been received since the December 1998 denial, to include VA treatment records from the Central Texas VAMC; private treatment records; additional lay evidence; a July 2012 VA examination; and, testimony from a September 2020 Board hearing. This new evidence relates to an unestablished fact necessary to substantiate the claim. Accordingly, the Board finds that the threshold for reopening the claim has been met, and the claim for service connection for a back condition is reopened. REASONS FOR REMAND The Board finds that additional evidentiary development is needed before the Board can render a decision on the Veteran’s urinary incontinence, back condition, pelvic pain, sebaceous cysts and scar claims. Specifically, VA examinations for each of the claimed conditions must be obtained. 1. Entitlement to service connection for urinary incontinence, to include as secondary to service-connected total hysterectomy with bilateral salpingo-oophorectomy, is remanded. The Veteran has consistently maintained that her urinary incontinence is secondary to her service-connected total hysterectomy with bilateral salpingo-oophorectomy. The Board acknowledges that VA examinations of this condition have been conducted, however the most recent examination in August 2019 was also inadequate as the examiner’s opinion was internally inconsistent. The examiner stated in the beginning of her medical opinion that the claimed condition is less likely than not proximately due to or the result of the Veteran’s service-connected condition. However, in the last statement of her opinion, the examiner stated the currently diagnosed mixed incontinence is at least as likely as not proximately due to or the result of the veteran’s service-connected status post total abdominal hysterectomy with left and right salpingo-oophorectomy. As such, the Board finds the August 2019 medical opinion to be inadequate. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). On remand, a new opinion must be obtained. 2. Entitlement to service connection for a back condition, to include as secondary to service-connected total hysterectomy with bilateral salpingo-oophorectomy, is remanded. The Veteran has consistently maintained that her back condition is secondary to her service-connected total hysterectomy with bilateral salpingo-oophorectomy. The Board acknowledges that a VA examination of this condition was conducted in July 2012, however that medical opinion is deemed inadequate. Although the examiner noted in the Veteran’s medical history that the Veteran complained of lower back pain in service, and that her back pain started again after her partial hysterectomy in 2009, the examiner opined that the claimed condition is less likely than not proximately due to or the result of the Veteran's service connected condition. As rationale, the examiner simply stated, "back pain preceded hysterectomy" (without address the back pain that resulted from the Veteran’s hysterectomy). As such, the Board finds the July 2012 medical opinion to be inadequate. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). On remand, a new opinion must be obtained. 3. Entitlement to service connection for pelvic pain, to include as secondary to service-connected total hysterectomy with bilateral salpingo-oophorectomy, is remanded. The Veteran has consistently maintained that her pelvic pain is secondary to her service-connected total hysterectomy with bilateral salpingo-oophorectomy. The Board acknowledges that a VA examination of this condition was conducted in July 2012, however that medical opinion is deemed inadequate. While the examiner noted the Veteran complained of chronic pain after hysterectomy in 1997 and 2 subsequent GYN surgical procedures that followed, the examiner opined that the “anxiety and depression associated with chronic pelvic pain is at least as likely as not caused by or a result of the hysterectomy and subsequent GYN surgical procedures this patient has experienced.” As the examiner did not specifically address the Veteran’s pelvic pain, the Board finds the medical opinion to be inadequate. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). On remand, a new opinion must be obtained. 4. Entitlement to service connection for recurring sebaceous cysts is remanded. As noted above, the Veteran clarified at the September 2020 Board hearing in this matter that she is seeking service connection for recurring sebaceous cysts. On remand, the Agency of Original Jurisdiction (AOJ) shall develop this claim, to include obtaining a VA examination. There is a June 2014 VA examination for skin diseases in the claim file. However, the examiner did not provide a nexus opinion, noting “sebaceous cyst not found on exam today.” A September 2014 private medical opinion that (1) diagnosed the Veteran with sebaceous cysts, and (2) opined that the Veteran’s painful, ongoing condition is at least 50 percent likely to be connected to active duty service. However, no rationale was provided for this private medical opinion. On remand, a new opinion must be obtained. 5. Entitlement to a compensable rating for service-connected scars, status post hysterectomy, is remanded. Upon review of the record, the Veteran has surgical stars from 3 procedures: a May 1997 partial hysterectomy during service; a September 2009 gynecological surgery; and a June 2010 total hysterectomy. In June 2006, the Veteran was granted service-connected for residual scar, status post abdominal hysterectomy, and assigned a 10 percent rating. In a January 2019 Board decision, the Veteran was separately granted service connection for surgical scars of the abdomen resulting from the September 2009 and June 2010 surgeries (which the RO subsequently assigned a noncompensable rating). On appeal is the Veteran’s claim for an increased rating of these surgical scars. In an August 2019 VA examination report for scars, the examiner stated the Veteran had two painful scars. However, at the September 2020 Board hearing in this matter, the Veteran testified she had undergone a total of three surgeries related to her total hysterectomy and that she had about eight scars that are painful and tender to the touch. As such, a new medical opinion is needed that addresses all of her surgical scars. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current diagnosis and etiology of her claimed urinary incontinence. The entire claims file, including this remand, must be made available to the examiner. For the claimed urinary incontinence, the examiner must offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability: • Began in service, within one year of service separation, or is otherwise related to her active duty service (direct service connection); or, • Was caused or aggravated by her service-connected total hysterectomy with bilateral salpingo-oophorectomy (secondary service connection). In rendering a decision, the examiner must consider and specifically comment on the Veteran’s lay statements. The medical reasons for accepting or rejecting the Veteran’s statements should be set forth in detail. A complete rationale must be given for all opinions and conclusions expressed. 2. Schedule the Veteran for a VA examination to determine the current diagnosis and etiology of her claimed back condition. The entire claims file, including this remand, must be made available to the examiner. For the claimed back condition, the examiner must offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability: • Began in service, within one year of service separation, or is otherwise related to her active duty service (direct service connection); or, • Was caused or aggravated by her service-connected total hysterectomy with bilateral salpingo-oophorectomy (secondary service connection). In rendering a decision, the examiner must consider and specifically comment on the Veteran’s lay statements. The medical reasons for accepting or rejecting the Veteran’s statements should be set forth in detail. A complete rationale must be given for all opinions and conclusions expressed. 3. Schedule the Veteran for a VA examination to determine the current diagnosis and etiology of her claimed pelvic pain. The entire claims file, including this remand, must be made available to the examiner. For the claimed pelvic pain, the examiner must offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability: • Began in service, within one year of service separation, or is otherwise related to her active duty service (direct service connection); or, • Was caused or aggravated by her service-connected total hysterectomy with bilateral salpingo-oophorectomy (secondary service connection). In rendering a decision, the examiner must consider and specifically comment on the Veteran’s lay statements. The medical reasons for accepting or rejecting the Veteran’s statements should be set forth in detail. A complete rationale must be given for all opinions and conclusions expressed. 4. Develop and adjudicate the Veteran’s claim for service connection for sebaceous cysts. Said development must include scheduling the Veteran for a VA examination to determine the current diagnosis and etiology of her claimed sebaceous cysts. The entire claims file, including this remand, must be made available to the examiner. For the claimed sebaceous cysts, the examiner must offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed sebaceous cysts had its onset in service or is otherwise related to service. In rendering a decision, the examiner must consider and specifically comment on: • the Veteran’s lay statements. The medical reasons for accepting or rejecting the Veteran’s statements should be set forth in detail; and, • the September 2014 private medical opinion regarding the Veteran’s sebaceous cysts. A complete rationale must be given for all opinions and conclusions expressed. If, after review of the VA examination for sebaceous cysts, the benefit sought is not granted, the Veteran should be furnished with a supplemental statement of the case for the issue of service connection for sebaceous cysts only and afforded an opportunity to respond before the record is returned to the Board for further review. 6. Schedule the Veteran for a VA examination to determine the current severity of her service-connected surgical scars. The entire claims file, to include a complete copy of this remand, must be made available to, and reviewed by, the designated examiner. (Continued on the next page)   The examiner must examine and specifically address each of the Veteran’s surgical scars, which the Veteran testified to being eight in number. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jiggetts 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.