Citation Nr: 21011145 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-19 254 DATE: March 1, 2021 ORDER New and material evidence having been received, the service connection claim for lymphedema of the left arm and hand, claimed as secondary to breast cancer, is reopened. New and material evidence having been received, the service connection claim for a blood stream infection, claimed as secondary to breast cancer, is reopened. Entitlement to service connection for lymphedema of the left arm and hand, claimed as secondary to breast cancer, is granted. REMANDED Entitlement to service connection for a blood stream infection, claimed as secondary to breast cancer, is remanded. FINDINGS OF FACT 1. In a May 2010 rating decision, the Veteran was denied service connection for lymphedema and for a blood stream infection; a timely notice of disagreement regarding this determination was not received by VA. 2. Subsequent to the May 2010 rating Board, VA received new and material evidence, consisting of a VA medical examination report, regarding a service connection claim for lymphedema of the left arm and hand, claimed as secondary to breast cancer. 3. Subsequent to the May 2010 rating Board, VA received new and material evidence, consisting of a VA medical examination report, regarding a service connection claim for a blood stream infection, claimed as secondary to breast cancer. 4. The Veteran’s lymphedema of the left arm and hand is due to or the result of her service-connected breast cancer. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim of service connection for lymphedema of the left arm and hand. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence has been received to reopen a claim of service connection for a blood stream infection. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for lymphedema of the left arm and hand, claimed as secondary to breast cancer, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1987 to September 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified in March 2019 before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. This appeal was previously presented to the Board in September 2019, at which time it was remanded for additional development. Also remanded by the Board in September 2019 was the issue of entitlement to service connection for breast cancer. In a subsequent August 2020 rating decision, the Veteran was granted service connection for status post left breast lumpectomy with left auxiliary dissection (breast cancer). Thus, this issue is no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The Board further notes that the RO provided the Veteran a Supplemental Statement of the Case (SSOC) in October 2020 on the issue of entitlement to a compensable initial rating for breast cancer. Because, however, a grant of service connection constitutes a full award of the benefits sought on appeal with respect to the breast cancer disability, the Veteran will have to initiate a separate appellate action if she wishes to appeal the initial rating assigned this award. Grantham, 114 F. 3d at 1158. The RO did not provide the Veteran with a SSOC subsequent to the September 2019 Board remand regarding the issues addressed herein; however, because the Board’s actions regarding these issues is non-prejudicial to the Veteran, the Board will proceed with consideration of these issues at this time. Service Connection 1. Whether new and material evidence has been received to reopen a claim of service connection for lymphedema of the left arm and hand, claimed as secondary to breast cancer 2. Whether new and material evidence has been received to reopen a claim of service connection for a blood stream infection, claimed as secondary to breast cancer The Veteran seeks to reopen service connection claims for lymphedema and a blood stream infection, both claimed as secondary to breast cancer. In a prior May 2010 rating decision, VA denied the Veteran’s claims for service connection for lymphedema and a blood stream infection. The RO found that neither of these disabilities were incurred in or otherwise related to service, and service connection was therefore not warranted. The Veteran was notified of this determination via a letter sent that same month. The Veteran did not file a timely notice of disagreement regarding this determination, and these denials became final. 38 U.S.C. § 7105. Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). In order to be new and material, the evidence must not be cumulative or redundant, and must raise a reasonable possibility of substantiating the claim, a requirement which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). Evidence received since the May 2010 rating decision includes an October 2020 VA medical examination and opinion. According to this report, the Veteran developed lymphedema of the left upper extremity following a lumpectomy to treat her breast cancer. The examination report also noted the Veteran developed sepsis, an infection of the blood stream, following her lumpectomy. Service connection for breast cancer was awarded in an August 2020 rating decision; thus, competent evidence of a nexus between the claimed disabilities, lymphedema and sepsis, and a service-connected disability, breast cancer, has been presented. This evidence is new because it was not of record at the time of the prior denial. This evidence is also material because it relates to unestablished facts necessary to establish the Veteran’s claims; specifically, that the Veteran’s claimed disabilities are due to or the result of a service-connected disability. Additionally, the evidence is neither cumulative nor redundant, as this evidence was not of record at the time of the prior denial. Accordingly, for all of the above reasons, the Veteran’s claims for entitlement to service connection for lymphedema and for a blood stream infection are reopened. 3. Entitlement to service connection for lymphedema of the left arm and hand, claimed as secondary to breast cancer The Veteran seeks service connection for lymphedema. She asserts this disability is due to or aggravated by a service-connected disability, breast cancer, and service connection is therefore warranted. Service connection may be awarded for any disability which is proximately due to or the result of, or is otherwise aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In the present case, the Veteran has been awarded service connection for breast cancer, status post left breast lumpectomy with left auxiliary dissection. According to an October 2020 VA examination report, the Veteran developed lymphedema of the left upper extremity as a result of her lumpectomy. As this competent evidence was provided by a VA medical expert and is uncontradicted within the record, the Board finds service connection on a secondary basis for lymphedema of the left upper extremity is warranted, and the appeal is granted. REASONS FOR REMAND 1. Entitlement to service connection for a blood stream infection, claimed as secondary to breast cancer, is remanded. The Veteran seeks service connection for a blood stream infection, claimed as secondary to service-connected breast cancer. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). In the present case, on VA examination in October 2020, a VA physician noted that the Veteran developed a blood stream infection, sepsis, in 2009 as a result of her lumpectomy performed as part of her treatment for breast cancer. The physician further stated, however, that this infection was resolved. Remand is therefore required to address whether the Veteran’s sepsis is resolved without likelihood to recur, and whether she has any residuals resulting therefrom for which service connection may be warranted. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present). Additionally, the Board notes that following the VA examination and other development ordered as part of the Board’s September 2019 remand order, the RO did not readjudicate this pending claim. The Veteran was also not provided a Supplemental Statement of the Case. See 38 C.F.R. § 19.31. These actions must be accomplished prior to any further adjudication by the Board. The matters are REMANDED for the following action: 1. Provide the Veteran’s claims file to an appropriate medical professional in order to obtain an opinion regarding the etiology of the Veteran’s claimed blood stream infection. The Veteran need not be scheduled for in-person examination unless such examination is considered necessary by the reviewer. After reviewing the claims file, the VA examiner is asked to address the following questions: a) Does the Veteran have a current diagnosis of sepsis or any other infection of the blood due to or aggravated by her service-connected breast cancer, status post left breast lumpectomy with left auxiliary dissection? b) Does the Veteran have any permanent residuals or impairment resulting from her 2009 diagnosis of sepsis following her lumpectomy? Please provide a diagnosis for any such residual or impairment identified. A complete rationale for any opinion provided would be appreciated by the Board. 2. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and her representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thomas D. Jones, 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.