Citation Nr: 0706628 Decision Date: 03/07/07 Archive Date: 03/13/07 DOCKET NO. 05-14 296A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for removal of gallbladder secondary to polycystic ovarian syndrome surgery. 2. Entitlement to service connection for polycystic ovarian syndrome. 3. Whether new and material evidence has been submitted to reopen a previously denied claim of service-connection for cervical condition, claimed as neck pain. 4. Whether new and material evidence has been submitted to reopen a previously denied claim of service-connection for headaches, claimed as secondary to cervical condition. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Seales, Associate Counsel INTRODUCTION The veteran had active service from March 1993 to February 1994. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that rating decision the RO denied service connection for removal of her gallbladder and polycystic ovarian syndrome. In addition, the RO determined that the veteran failed to submit new and material evidence sufficient to reopen her claims for service connection for a cervical condition, claimed as neck pain, and headaches. The veteran submitted various medical records at her November 2006 Board hearing, with a VA Form 21-4138 waiving Regional Office Consideration. The issues of service connection for polycystic ovarian syndrome and removal of gall bladder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In an April 1994 rating decision, the RO denied service connection for headaches because there was no evidence of complaints, treatment, or diagnosis of headaches during service. 2. In a February 2000 rating decision, the RO denied service connection for neck pain, claimed as a cervical condition, because there was no evidence of complaints, treatment, or diagnosis of neck pain during service. 3. In a July 2002 rating decision, the RO determined that new and material evidence had not been submitted sufficient to reopen the veteran's previously denied claims for service connection for a cervical condition and headaches. The veteran was notified of that decision; however, she did not submit a notice of disagreement or perfect an appeal. 4. Evidence received since the July 2002 final rating decision is cumulative and redundant of other evidence of record, and is not, by itself or in connection with previously considered evidence, so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The July 2002 decision, in which the RO determined that new and material evidence had not been submitted sufficient to reopen previously denied claims for service connection for a cervical condition and headaches, is final. 38 U.S.C. § 7105 (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2002). 2. New and material evidence has not been received since the RO's July 2002 rating decision and the claims for service connection for a cervical condition and headaches are not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). For claims filed after August 29, 2001, new and material evidence means evidence not previously submitted to agency decisionmakers. 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. § 156. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The veteran contends that she injured her cervical spine during service. She reports that another soldier accidentally struck her with an M-16 during training exercises. She states her neck pain worsened as a result of wearing a heavy bullet-proof helmet. She also attributes her neck pain to sleeping on cots and thin mattresses during service. She reports seeking treatment for her neck pain from the field medic, who prescribed pain relievers. In addition, the veteran contends that her headaches are related to her cervical spine injury. In July 2002, the RO determined that the veteran had not submitted new and material evidence sufficient to reopen her previously denied claims for service connection. In denying her claim, the RO concluded that the evidence received in connection with the claim to reopen failed to establish that the veteran sustained a cervical spine injury during service. The relevant evidence of record considered in conjunction with the July 2002 denial of VA compensation benefits include the veteran's service medical records and her lay statements in support of her claim, November and December 1999 medical records reflecting diagnosis and treatment for several cervical spine disorders, and an undated x-ray reflecting cervical spine disc herniation with nerve impingement. The evidence submitted to reopen the claim includes VA medical records documenting treatment for cervical spondylosis and recurring headaches and the veteran's testimony before the undersigned Acting Veterans Law Judge in November 2006. While the recently submitted medical records are new, medical evidence describing the veteran's current condition is not material to the issue of service connection. See Morton v. Principi, 3 Vet. App. 508 (1992). As such, the current medical records do not serve to reopen her claim. Similarly, the veteran's contentions concerning the origins of the disability merely duplicate the contentions which were of record at the time of the previous denials. See Bostain v. West, 11 Vet. App. 124 (lay hearing testimony which is cumulative of previous contentions which were considered by the decisionmaker at the time of the prior final disallowance is not new evidence). The evidence submitted is cumulative and redundant of the evidence of record in July 2002. The unestablished fact- that the veteran has a cervical spine condition and headaches medically linked to an in-service injury or disease- remains unestablished by the evidence submitted in association with the veteran's most recent claim to reopen her previously denied claim. The Board finds the evidence submitted is not new and material and does not serve to reopen the veteran's claim. As the veteran has not met the threshold burden of submitting new and material evidence sufficient to reopen her claim, the benefit of the doubt doctrine does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Duty to Notify and Assist Duty to Notify: Regarding VA's duty to inform the veteran of the evidence needed to substantiate her claim, the RO notified her that she needed to submit new and material evidence to reopen her previously denied claims in May 2003, including evidence that her current conditions occurred in service. They further informed her of the evidence the RO would obtain on her behalf. Because the claims have not been reopened, any question as to the appropriate disability rating or effective date is moot, and there can be no failure to notify prejudice to the veteran. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Duty to Assist: Regarding the duty to assist the veteran in obtaining evidence in support of her claims, the RO obtained her service medical records, private and VA medical records, and lay statements in support of her claim. The veteran testified before the undersigned Acting Veteran's Law Judge in November 2006. VA's duty to assist does not include providing a VA examination in claims to reopen. See 38 C.F.R. § 3.159(c) (4) (2006). The Board concludes that all relevant evidence has been obtained for determining the merits of this claim and that no reasonable possibility exists that any further assistance would aid the veteran in substantiating her claim. ORDER 1. New and material evidence not having been submitted, the application to reopen the claim of entitlement to service connection for a cervical condition, claimed as neck pain, is denied. 2. New and material evidence not having been submitted, the application to reopen the claim of entitlement to service connection for headaches, claimed as secondary to a cervical condition, is denied. REMAND The veteran claims service connection for polycystic ovarian syndrome, which she contends manifested during service. The veteran also claims service connection for removal of her gall bladder, which she contends became infected during a laparoscopic cystectomy performed during her active service which ended in February 1994. The veteran's gall bladder was subsequently removed in 1997. The medical evidence of record demonstrates a current diagnosis of polycystic ovarian syndrome managed with medication. The veteran underwent a laparoscopic cystectomy to treat a peritubal cyst in September 1993. In light of evidence of a current gynecological disability and service medical records documenting treatment for a peritubal cyst during service; VA has the duty to assist her in the development of her claim by providing her with a VA examination and opinion to determine whether a nexus exists between her current condition and her active service. With regard to her claim of service connection for gall bladder removal, the veteran has indicated that there are relevant private treatment records at M.H and B.T.H in Houston, TX. Specifically, she has submitted a September 2006 authorization and consent forms for release of information regarding April to May 1996 gall bladder and liver infections and a June 1997 emergency gall bladder removal. In November 2006 the veteran testified before the undersigned Acting Veterans Law Judge that the aforementioned medical records relate the gall bladder removal to the laparoscopic surgery performed during service. These records have not been associated with the claims file. VA has the duty to assist the veteran in the development of this claim by requesting the aforementioned medical records. In addition, the veteran contends that she received medical treatment at the VA medical center (VAMC) in Milwaukee, WI. These medical records have not been associated with her claims file. To ensure that VA has met its duty to assist the veteran in developing the facts pertinent to her claims, the issues of service connection for polycystic ovarian syndrome and gall bladder removal are REMANDED for the following: 1. Obtain any pertinent VA treatment records from the VA Medical Center in Milwaukee, WI and associate them with the claims folder. 2. Attempt to obtain relevant treatment records not already associated with the file from M. H. and B. T. H. in Houston, TX. Any records obtained should be associated with the claims file and unsuccessful efforts to obtain the records should be documented in the claims file. 3. After completion of the foregoing, schedule the veteran for appropriate VA medical examinations to: obtain an opinion as to whether it is as least as likely as not (a probability of 50 percent or better) that the veteran's current gynecological condition is related to service; and an opinion as to whether the veteran's gall bladder removal is related to service either directly, or as a result of her polycystic ovarian syndrome. The examiner must specifically address the veteran's treatment for a peritubal cyst in September 1993 in reaching a conclusion. The claims folder should be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. 4. After undertaking any additional development deemed appropriate in addition to that requested above, re- adjudicate the issues on appeal. If any benefits sought remain denied, the claimant should be provided a supplemental statement of the case and given the opportunity to respond. The appellant has the right to submit additional evidence and argument on the 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 Supp. 2005). ____________________________________________ RONALD W. SCHOLZ Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs