Citation Nr: 22036720 Decision Date: 06/27/22 Archive Date: 06/27/22 DOCKET NO. 11-10 805 DATE: June 27, 2022 ORDER Reconsideration of the prior denial of the claim for service connection for a history of miscarriages or residuals thereof is granted. REMANDED Entitlement to service connection for a history of miscarriages or residuals thereof, to include as due to environmental hazards exposure, is remanded. Entitlement to service connection for a gastrointestinal condition as due to environmental hazards exposure is remanded. FINDING OF FACT Following issuance of the July 2002 Rating Decision denying service connection for a history of miscarriages, which became final, VA received new evidence which is material to the claim. CONCLUSION OF LAW The criteria for reopening the previously-denied claim for service connection for a history of miscarriages have been met. 38 U.S.C. §§ 5108; 38 C.F.R. § 3.156(c). INTRODUCTION The Veteran served honorably on active duty in the United States Navy during the Gulf War Era, from July 1999 to June 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2009 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In the Veteran's April 2011 substantive appeal (VA Form 9) she requested a Travel Board hearing before a Veterans Law Judge (VLJ) at a local RO, and in a December 2016 statement she requested a live videoconference hearing. In January 2022, notice was sent to the Veteran's address of record notifying her of the virtual tele-hearing scheduled for April 2022. However, the Veteran failed to appear for this hearing, did not submit a request to reschedule, and has not presented good cause for failing to appear. As a result, the Veteran's hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d). Finally, the Board has recharacterized the issues to reflect the evidence and arguments more accurately. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Reconsideration of the prior denial of the claim for service connection for a history of miscarriages or residuals thereof is granted. The Veteran's claim for service connection for a history of miscarriages was previously denied on the merits by Rating Decision dated July 2002. Because she did not appeal or present new and material evidence within one year, the decision became final. See 38 U.S.C. § 7105. Generally, a claim that has been denied in an unappealed decision may not be reopened and allowed. See 38 U.S.C. §§ 7104(b), 7105(c). However, at any time after VA issues a decision on a claim, 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, notwithstanding paragraph (a) of this section. See 38 C.F.R. § 3.156(c)(1). Such records include (in pertinent part) service records related to a claimed in-service event, injury, or disease. See 38 C.F.R. § 3.156(c)(1)(i). Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department or from any other official source. See 38 C.F.R. § 3.156(c)(2). The July 2002 Rating Decision indicates the evidence reviewed included STRs "for the period 07-99, to 06-02, plus enlistment examination of 04-99." However, the Board observes the Veteran's service treatment records (STRs) were not associated with the electronic claims file until May 2015, which is also after issuance of the September 2009 Rating Decision on appeal and subsequent March 2011 Statement of the Case (SOC). These STRs address, inter alia, the Veteran's February 2002 miscarriage and reference further evaluations "to evaluate the etiology of recurrent fetal loss." Multiple episodes of acute inflammation are noted, and a January 2002 pathology report notes a "low grade squamous intraepithelial lesion" and a March 2002 STR notes "benign tissue and evidence of chronic cervicits [sic]." The Board finds the newly associated STRs, which no doubt existed when the RO issued the July 2002 Rating Decision, provide relevant evidence regarding matters in dispute. As a result, the Board finds that reopening of the previously-denied claim is warranted. 38 C.F.R. § 3.156(c)(1). REASONS FOR REMAND Entitlement to service connection for a history of miscarriages or residuals thereof, to include as due to environmental hazards exposure, is remanded. Entitlement to service connection for a gastrointestinal condition as due to environmental hazards exposure is remanded. The Veteran contends service connection is warranted for a history of miscarriages, or residuals thereof, and a gastrointestinal condition (e.g., irritable bowel, intestinal disaccharidase deficiencies and disaccharide malabsorption, lactose intolerance) due to exposure to environmental hazards such as radiation, asbestos, and chemicals while serving aboard the USS Oakridge and USS John F. Kennedy. She states her military occupational specialty (MOS) duties as a yeoman included, inter alia, "reading of the valves in the engine rooms on an hourly basis, 3 times per week," and working "on a crew that was to help repair the [submarines] ... 2 or 3 times per week." The Veteran states serving aboard the USS Oakridge while it was decommissioned "due to old age and in need of major repairs," and that the USS John F. Kennedy was also decommissioned "due to old age and in need of repairs." The Board observes a request was made through the Personnel Information Exchange System (PIES) in July 2009 seeking information regarding the Veteran's claimed exposure to asbestos and environmental hazards in Southwest Asia; however, no substantive response is of record. Despite the Veteran furnishing information sufficient for VA to verify her claimed exposure to environmental hazards, there is no indication efforts continued until such records were obtained, or otherwise were determined not to exist, or that further efforts to obtain them would be futile. See 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c)(2). Moreover, there is no indication the Veteran was provided notice of the unavailability of these records as required. See 38 C.F.R. § 3.159(e)(1). The Board also observes the Veteran's complete military personnel records are not contained in the claims file. Finally, the Board observes that, although the Veteran underwent a VA Gulf War examination in May 2009 (report received August 2009), VA medical nexus opinions have not been obtained. As such, the Board finds a medical nexus opinion must be obtained regarding the Veteran's service connection claim for a history of miscarriages, or residuals thereof, and if exposure to environmental hazards is verified, such opinion must be obtained regarding her service connection claim for a gastrointestinal condition. Accordingly, these matters are REMANDED for the following actions: 1. Undertake all efforts necessary to verify the Veteran's claimed in-service exposure to radiation, asbestos, and other environmental hazards, including while serving aboard the USS Oakridge and USS John F. Kennedy, AND to obtain and associate with the claims file her complete military personnel records. If more details are needed, contact the Veteran to request additional information and notate the record accordingly. If there is still insufficient information to verify exposure, OR if VA concludes the Veteran's complete military personnel records do not exist or further efforts to obtain them would be futile, the RO MUST issue a Formal Finding outlining the steps taken to assist the Veteran and notify her and her representative accordingly. 2. THEREAFTER, schedule the Veteran for an in-person VA examination with an examiner possessing the necessary expertise to fully assess and render an opinion regarding the nature, severity, and likely etiology of her history of miscarriages or residuals thereof, to include as due to claimed exposure to environmental hazards. The examiner MUST obtain a full history from the Veteran as she is competent to attest to factual matters of which she has first-hand knowledge, such as in-service and post-service events, symptomology, and functional limitations. All pertinent symptomology and functional limitations, including when initially manifested and any progression, MUST be reported in detail. All indicated studies MUST be performed. Based upon a review of all pertinent evidence in the Veteran's claims file (e.g., medical treatment and examination records, lay statements) and the examination results, the examiner MUST offer an opinion based upon an accurate medical history, with clear conclusions and supporting data and a reasoned medical explanation connecting the two, as to whether it is AT LEAST AS LIKELY AS NOT (i.e., 50 percent probability or greater) the Veteran's history of miscarriages or residuals thereof manifested during active duty service OR is due to, related to, or otherwise etiologically associated with an in-service event, injury, or disease, to include claimed in-service exposure to environmental hazards (e.g., radiation, asbestos). In offering the above opinion(s), the examiner MUST consider, discuss, and reconcile as necessary all pertinent lay and medical evidence of record, including: STRs dated July 1999 (e.g., scant ectocervical component, benign cellular changes, acute inflammation), December 1999 (e.g., heavy bleeding), December 2000 (e.g., acute inflammation), January 2002 (e.g., low grade squamous intraepithelial lesion), and March 2002 (e.g., pathology showing benign tissue and evidence of chronic cervicitis); non-VA medical treatment records received November 2009 (e.g., noting rule-out genetic reason for miscarriages); and the Veteran's statements received June 2009, October 2009, and December 2009. The examiner is advised that a mere absence of evidence does not equate to unfavorable evidence. The Veteran's lay statements regarding, for example, causation and onset MUST be considered and discussed. A complete and thorough rationale for all opinions expressed, with references to pertinent evidence of record and as warranted, supportive medical literature MUST be provided. 3. ONLY if the claimed environmental hazard(s) exposure is verified, schedule the Veteran for an in-person VA examination with an examiner possessing the necessary expertise to fully assess and render an opinion regarding the nature, severity, and likely etiology of her gastrointestinal condition(s). The examiner MUST obtain a full history from the Veteran as she is competent to attest to factual matters of which she has first-hand knowledge, such as in-service and post-service events, symptomology, and functional limitations. All pertinent symptomology and functional limitations, including when initially manifested and any progression, MUST be reported in detail. All indicated studies MUST be performed. Based upon a review of all pertinent evidence in the Veteran's claims file (e.g., medical treatment and examination records, lay statements) and the examination results, the examiner MUST offer an opinion based upon an accurate medical history, with clear conclusions and supporting data and a reasoned medical explanation connecting the two, as to whether it is AT LEAST AS LIKELY AS NOT (i.e., 50 percent probability or greater) each identified gastrointestinal condition is due to, related to, or otherwise etiologically associated with the Veteran's in-service exposure to environmental hazards (e.g., radiation, asbestos). In offering the above opinion(s), the examiner MUST consider, discuss, and reconcile as necessary all pertinent lay and medical evidence of record, including the Veteran's statements received June 2009, October 2009, and December 2009; and VA treatment records received March 2017 (e.g., intestinal disaccharidase deficiencies, disaccharide malabsorption, lactose intolerance, irritable bowel). The examiner is advised that a mere absence of evidence does not equate to unfavorable evidence. The Veteran's lay statements regarding, for example, causation and onset MUST be considered and discussed. A complete and thorough rationale for all opinions expressed, with references to pertinent evidence of record and as warranted, supportive medical literature MUST be provided. A. HAMPTON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.