Citation Nr: 1736599	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  12-10 349	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for pelvic fibroid tumors.

2.  Entitlement to service connection for sleep apnea (claimed as sleep disorder).

3.  Entitlement to service connection for heart palpitations.

4.  Entitlement to service connection for a gastrointestinal disorder (claimed as stomach ulcer).

5.  Entitlement to service connection for a right shoulder disorder.

6.  Entitlement to an initial rating in excess of 10 percent for left shoulder rotator cuff syndrome.

7.  Entitlement to a compensable initial rating for lumbar strain.

8.  Entitlement to a compensable initial rating for right plantar fasciitis with heel pain and calluses.

9.  Entitlement to a compensable initial rating for left plantar fasciitis with heel pain and calluses.

10.  Entitlement to a compensable initial rating for right knee patellofemoral syndrome.

11.  Entitlement to a compensable initial rating for left knee patellofemoral syndrome.

12.  Entitlement to a total disability rating for compensation purposes based on individual employability (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Henriquez, Counsel



INTRODUCTION

The Veteran had active service from November 1979 to April 1980, March 1981 to September 1992, January 1999 to September 1999, April 2000 to September 2000, January 2002 to July 2004, August 2004 to August 2006, and from November 2006 to November 2008.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) located in Montgomery, Alabama.  The claims are currently under the jurisdiction of the RO in Philadelphia, Pennsylvania.  

In July 2016, the Veteran provided testimony at a travel Board hearing.  A transcript of the hearing is of record.  Following the hearing, the Veteran submitted additional medical evidence along with a waiver of initial RO consideration.   

Also, the issue of entitlement to a TDIU as a result of service-connected disabilities was raised at the July 2016 hearing.  Since entitlement to a TDIU is an element of a claim for increased rating, that issue has been included on the title page.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).

The issues of entitlement to service connection for bunions of both feet and for entitlement to service connection for sinusitis have been raised by the record in the July 2016 hearing, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2016). 

The issues of entitlement to service connection for pelvic fibroid tumors, sleep apnea, heart palpitations, gastrointestinal disorder, right shoulder disorder and entitlement to higher initial ratings for left shoulder rotator cuff syndrome, lumbar strain, right and left plantar fasciitis, right and left knee patellofemoral syndrome and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  In a February 1997 rating decision, the RO last denied the Veteran's claim for service connection for pelvic fibroid tumors. 

2.  Evidence received since the February 1997 rating decision is new, relates to an unestablished fact necessary to substantiate the Veteran's claim of service connection for pelvic fibroid tumors, and raises a reasonable possibility of substantiating the claim.  


CONCLUSION OF LAW

As new and material evidence has been received, the criteria for reopening the claim for service connection for pelvic fibroid tumors are met.  38 U.S.C.A. 
§ 5108 (West 2014); 38 C.F.R. § 3.156 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

With regard to the petition to reopen the claim of service connection for pelvic fibroid tumors, the duty to notify and assist applies to this issue on appeal. However, as the benefit sought is being granted (the claim is being reopened), no discussion of VA's duty to notify or assist is necessary with respect to this claim.

New and Material Evidence Claims

The Veteran is seeking service connection for pelvic fibroid tumors.  As will be discussed below, this claim has been previously denied.  The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits.  Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). 

The Board must therefore proceed to analyze whether new and material evidence has been submitted since the prior final decision.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2016).

New evidence is defined as evidence not previously submitted to agency decision makers.  Material evidence means existing 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 prior 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).

An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material.  If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits.  Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled.  See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999).

In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court held that once new and material evidence has been presented as to an unestablished fact from a previously denied claim for service connection, the claimant will be entitled to the full benefits of the Secretary's duty to assist, including a medical nexus examination, if one is warranted; it does not require new and material evidence as to each previously unproven element of a claim.

After the evidence is assembled, it is the Board's responsibility to evaluate the entire record.  See 38 U.S.C.A. § 7104 (a) (West 2014).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2016).

The Veteran's claim for pelvic fibroid tumors was last denied in a February 1997 RO decision.  Although the Veteran was notified of the RO's decision, he did not appeal. As such, the February 1997 RO decision is final.  See 38 U.S.C.A. 
§ 7105 (West 2002); 38 C.F.R. § 20.1103 (2011).

The RO's denial of the claim in February 1997 determined that the Veteran was diagnosed as having fibroids in November 1993, which was during a time period that she was not in active duty service.  Thus, the claim was denied on the lack of evidence of a link between any current pelvic fibroids and active duty service.

Since that denial, the Veteran testified at the July 2016 hearing that she initially started having problems of heavy menstrual bleeding and increased urination during service but was diagnosed with fibroids in November 1993, following a period of active duty.  She stated that she ultimately underwent a myomectomy for treatment of the fibroids during a period of active duty service in 2003.  However, she testified that she continues to have problems with fibroids despite having surgery, to include a large, symptomatic scar from the surgical incision site.  Accordingly, the Board finds that new and material evidence has been presented to reopen the Veteran's previously denied claim of entitlement to service connection for pelvic fibroid tumors, as it raises a reasonable possibility that the Veteran has a current pelvic fibroid tumors disability which may have been incurred during or related to the Veteran's active duty service.  





ORDER

New and material evidence having been received, the claim of entitlement to service connection for pelvic fibroid tumors is reopened. 


REMAND

The reopened claim of entitlement to service connection for pelvic fibroid tumors along with the claims for service connection for sleep apnea, heart palpitations, gastrointestinal disorder, and right shoulder disorder and the appeals for higher initial ratings for left shoulder rotator cuff syndrome, lumbar strain, right and left plantar fasciitis with heel pain and calluses, right and left knee patellofemoral syndrome, and entitlement to a TDIU, warrant further development.

Pelvic Fibroid Tumors

As discussed above, the Veteran testified at the July 2016 Board hearing that she initially experienced heavy menstrual bleeding and frequent urination during active duty service but was formally diagnosed as having pelvic fibroid tumors following a period of active duty in November 2003.  She also contends that she continues to have symptomatic pelvic fibroid tumors despite having surgery during active duty in 2003, to include extensive abdominal scarring.    

The Veteran was afforded a VA examination in July 2009, however, the examiner did not provide a diagnosis as the Veteran declined an examination.  It is unclear what examination the examiner was referencing and whether any diagnostic tests were warranted.  In light of the above and the Veteran's current hearing testimony, the Board finds that further VA examination is warranted.   

Sleep Apnea

The Veteran contends that she has had sleep problems that have persisted throughout her military career to the present time.  

The service treatment records dated in 2004 show complaints of insomnia.  

On VA examination in July 2009, the examiner determined that a diagnosis of a sleep disorder was not possible because there was no sleep study available.  However, a subsequent private sleep study conducted in November 2014 shows a diagnosis of mild obstructive sleep apnea, worse when supine.

In light of the above, the Veteran should be provided a VA examination to address the etiology of her sleep apnea.

Heart Palpitations

The service treatment record show a history of palpitations during the Veteran's last period of active duty service.  

On VA examination in July 2009, the Veteran reported that she has been taking Atenolol for management of her heart palpitations.  She stated that as a result of her condition, she experiences shortness of breath, fatigue and cannot take the sun or increased heat.  The VA examiner stated that a diagnosis was not possible because Holter monitoring was warranted but was unavailable.  A July 2014 private Holter monitor study was normal, however, it remains unclear whether the Veteran has a current disability manifested by heart palpitations.  Therefore, further VA examination is warranted.  

Gastrointestinal Disorder

The Veteran claims that she had had a gastrointestinal disorder (claimed as stomach ulcer) since her last period of active duty in 2007.  She reports that that she has aches and a burning sensation in her stomach due to being on too many pain medications.

On VA examination in July 2009, the examiner stated that a diagnosis was not possible because on UGI (upper gastrointestinal series) was not available.  Accordingly, further VA examination is warranted.

Right Shoulder Disorder

The Veteran believes that she injured her right shoulder when she was practicing for air assault during active duty service.

A September 2008 service treatment record show that the Veteran complained of shoulder pain.  It was noted in the treatment record that the Veteran underwent an x-ray in August 2008 which was positive for "calcific tendinitis consistent with an old injury - possible for air assault school in 1986."

On VA examination in July 2009, the examiner determined that diagnosis with respect to the right shoulder was not warranted as there was no pathology to render a diagnosis.  However, the Veteran testified at the July 2016 hearing that she continues to have right shoulder pain and discomfort.

As the Veteran reports continued right shoulder symptoms, further VA examination is warranted.    

Higher Initial Ratings 

The Veteran is seeking entitlement to higher initial ratings for her service-connected left shoulder disability, lumbar spine disability, right and left plantar fasciitis disabilities, and right and left knee disabilities.

She was last evaluated for her service-connected disorders in July 2009.   The Veteran testified at the July 2016 hearing that each of the service-connected disabilities have increased in severity.  Given that the record demonstrates a potential increase in severity of the Veteran's service-connected disabilities since she was last evaluated in July 2009, additional examinations are warranted on remand.

TDIU

The Veteran testified at the July 2016 Board hearing that she believes that her service-connected disabilities preclude her from working full-time.  

As noted above, TDIU claim is part and parcel of the appeals for higher initial ratings for the disabilities at issue, when raised by the record.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  Thus, the issue of entitlement to a TDIU must be remanded to the AOJ for initial development and consideration.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for an appropriate VA examination to determine the current nature and etiology of her claimed pelvic fibroid tumors.  The claims file must be made available to the examiner for review and the examiner must state in the examination report that the claims file has been reviewed.  All indicated tests should be performed.

The examiner is advised that the Veteran is competent to report her symptoms and history experienced through her senses.  Such reports must be acknowledged and considered in formulating any opinion.  If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection.

The examiner is asked to determine if it is at least as likely as not that any pelvic fibroid tumors, to include abdominal scarring, had its onset during or is in any way related to her military service, to include any documented surgery in November 2003.

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

2.  The Veteran should be afforded a VA medical examination for the purposes of determining the nature and etiology of her sleep apnea.  The claims file must be provided to the examiner for review in connection with the examination. 

The examiner should elicit a full history from the Veteran and consider the lay statements of record.  It should be noted that the Veteran is competent to attest to factual matters of which she has first-hand knowledge.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 

The examiner should provide an opinion as to whether it is at least as likely as not that the currently diagnosed sleep apnea had its clinical onset during a period of active service or is related to any in-service event, disease, or injury. 

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

3.  Schedule the Veteran for a VA examination of her claimed heart palpitations.  The claims folder should be made available to and reviewed by the examiner. 

The examiner should elicit a full history from the Veteran and consider the lay statements of record.  It should be noted that the Veteran is competent to attest to factual matters of which she has first-hand knowledge.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 

The examiner should diagnose any heart palpitations disability present.

The examiner should provide an opinion as to whether it is at least as likely as not that any currently diagnosed heart palpitations had its clinical onset during a period of active service or is related to any in-service event, disease, or injury. 

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

4.  Schedule the Veteran for an appropriate VA examination to determine the current nature and etiology of her claimed gastrointestinal disorder.  The claims file must be made available to the examiner for review and the examiner must state in the examination report that the claims file has been reviewed.  All indicated tests should be performed.

The examiner is advised that the Veteran is competent to report her symptoms and history experienced through her senses. Such reports must be acknowledged and considered in formulating any opinion.  If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection.

The examiner is asked to determine if it is at least as likely as not a diagnosed gastrointestinal disorder had its onset during or is in any way related to her military service. 

The examiner is also asked to opine whether it is at least as likely as not that any current gastrointestinal disorder is proximately due to or chronically aggravated by taking medications for any of the Veteran's service-connected disabilities.  

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

5.  Schedule the Veteran for a VA examination of her claimed right shoulder disorder.  The claims folder should be made available to and reviewed by the examiner. 

The examiner should elicit a full history from the Veteran and consider the lay statements of record.  It should be noted that the Veteran is competent to attest to factual matters of which she has first-hand knowledge.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 

The examiner should diagnose any right shoulder disorder present.

The examiner should provide an opinion as to whether it is at least as likely as not that any currently diagnosed right shoulder disorder had its clinical onset during a period of active service or is related to any in-service event, disease, or injury. 

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

6.  Schedule the Veteran for an appropriate VA orthopedic examination to ascertain the severity of the Veteran's current left shoulder disability, lumbar spine disability, and right and left knee disabilities.  The entire claims file must be made available to and reviewed by the examiner.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of each of the Veteran's service-connected disabilities.  The examiner should report all signs and symptoms necessary for rating each of the Veteran's disabilities under the rating criteria.   

The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.

7.  Schedule the Veteran for an appropriate VA podiatric examination to ascertain the severity of the Veteran's current right and left plantar fasciitis with heel pain and calluses.  The entire claims file must be made available to and reviewed by the examiner.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of each of the Veteran's service-connected disabilities.  The examiner should report all signs and symptoms necessary for rating each of the Veteran's disabilities under the rating criteria.   

The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles.  If an opinion cannot be made without resort to speculation, the examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.
  
8.  The AOJ should fully develop the matter of the Veteran's claim for entitlement to a TDIU, to include issuance of VCAA notice, and provision of VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) for completion and return to VA.

9.  When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If any benefit sought on appeal is not granted to the fullest extent, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs

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