Citation Nr: 0332867 Decision Date: 11/24/03 Archive Date: 12/01/03 DOCKET NO. 02-14 307 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for hypertension, claimed as secondary to service-connected residuals of a total abdominal hysterectomy, with bilateral salpingo- oophorectomy and lysis pelvic adhesions. 2. Entitlement to service connection for osteoarthritis of the lumbar spine, on a direct basis and as secondary to service-connected bilateral knee disabilities. 3. Entitlement to service connection for osteoarthritis of the cervical spine, on a direct basis and as secondary to service-connected bilateral knee disabilities. 4. Entitlement to service connection for a psychiatric disability, to include depression and anxiety, claimed as secondary to service-connected disabilities, to include residuals of a total abdominal hysterectomy, with bilateral salpingo-oophorectomy and lysis pelvic adhesions. 5. Entitlement to service connection for fibrocystic breast disease. 6. Entitlement to service connection for chronic residuals of right inguinal hernia repairs, claimed as secondary to service-connected residuals of a total abdominal hysterectomy, with bilateral salpingo-oophorectomy and lysis pelvic adhesions. 7. Entitlement to service connection for chronic residuals of umbilical hernia repairs, claimed as secondary to service- connected residuals of a total abdominal hysterectomy, with bilateral salpingo-oophorectomy and lysis pelvic adhesions. 8. Entitlement to service connection for interstitial cystitis and cystitis diverticulum. 9. Entitlement for ovarian remnant syndrome, endometrioma. 10. Entitlement to service connection for a disability of the sigmoid colon, claimed as secondary to service-connected abdominal wall adhesions, post operative. 11. Entitlement to an initial schedular rating in excess of zero percent for osteopenia, on appeal from an original grant of service connection. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel REMAND On March 27, 2003, the Board of Veterans' Appeals (BVA or Board) ordered further development in your case. Thereafter, your case was sent to the Board's Evidence Development Unit (EDU), to undertake the requested development. Prior to May 1, 2003, the Board's regulations provided that if further evidence, clarification of the evidence, correction of a procedural defect, or any other action was essential for a proper appellate decision, a Board Member or panel of Members could direct Board personnel to undertake the action essential for a proper appellate decision. See 38 C.F.R. § 19.9(a)(2) (2002). However, on May 1, 2003, the United States Court of Appeals for the Federal Circuit ("Federal Circuit") invalidated 38 C.F.R. § 19.9(a)(2), in Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (hereinafter "DAV"). The Federal Circuit held that 38 C.F.R. § 19.9(a)(2), in conjunction with the amended rule codified at 38 C.F.R. § 20.1304, was inconsistent with 38 U.S.C. § 7104(a), because 38 C.F.R. § 19.9(a)(2), denies appellants "one review on appeal to the Secretary" when the Board considers additional evidence without having to remand the case to the agency of original jurisdiction (AOJ) for initial consideration, and without having to obtain the appellant's waiver. Following the Federal Circuit's decision in DAV, the General Counsel issued a precedential opinion, which concluded that DAV did not prohibit the Board from developing evidence in a case before it, provided that the Board does not adjudicate the claim based on any new evidence it obtains unless the claimant waives initial consideration of such evidence by first-tier adjudicators in the Veterans Benefits Administration (VBA). VAOPGCPREC 1-03. Based on this opinion, the Board continued, for a short time, to request development via the Board's EDU. Recently, in light of the Federal Circuit Court's decision and other policy considerations, the Department of Veterans Affairs (VA) determined that VBA would resume all development functions. In other words, aside from the limited class of development functions that the Board is statutorily permitted to carry out, see 38 U.S.C.A. §§ 7107(b), 7109(a), all evidence development will be conducted at the regional office (RO) level. In the event that you appeared at a hearing before a Veterans Law Judge (VLJ) other than the VLJ signing this remand, be advised that if your case is returned to the Board, it will be reassigned to the VLJ who conducted your hearing. Accordingly, this matter is REMANDED to the RO for the following: 1. Obtain the veteran's medical records from the VA Medical Center in Montgomery, Alabama, for any treatment for her service-connected osteopenia and any other disabilities between December 2001 and the present. Please obtain the following types of records: Notes, Discharge Summaries, Consults, Vitals, Medications, Lab Findings, Imaging (X- Ray, MRI, CT scan), Procedures, Problem List, and Confirmed Diagnoses. 2. Ask the veteran for the dates of treatment received from Dr. C. Paul Perry, a private gynecologist with offices in Birmingham, Alabama. Ask her also for this physician's address (the address in the photocopies in the file are illegible). Thereafter, contact Dr. Perry and obtain from him copies of the medical records identified by the veteran. 3. Ask the veteran to provide the complete name, address, and treatment dates of the psychiatrist she reportedly has been seeing, according to an August 1, 2002, statement from Dr. Perry. (It is not clear from that statement whether it is a VA or private psychiatrist.) Thereafter, contact that psychiatrist, if private, and obtain copies of the medical records identified by the veteran. If it is a VA psychiatrist, obtain the veteran's VA mental health treatment records for the periods of time specified by the veteran. 4. The veteran is seeking service connection for hypertension, as secondary to her service-connected residuals of a total abdominal hysterectomy, with bilateral salpingo-oophorectomy and lysis pelvic adhesions. Schedule her for a VA medical examination of her cardiovascular system. Send the claims folders to the examiner and ask him or her to review the evidentiary record prior to the examination, examine the veteran and render a legible report of medical examination expressing an opinion as to whether it is more likely, less likely, or as likely as not that the veteran's hypertension (if such a diagnosis is warranted) is causally related to service or proximately due to the veteran's service-connected residuals of a total abdominal hysterectomy, with bilateral salpingo-oophorectomy and lysis pelvic adhesions. The examiner should be asked to provide a complete rationale of his or her opinions and conclusions in the examination report. 5. The veteran is also seeking service connection for a psychiatric disability, to include depression and anxiety, claimed as secondary to service-connected disabilities, to include residuals of a total abdominal hysterectomy, with bilateral salpingo-oophorectomy and lysis pelvic adhesions. Schedule her for a VA psychiatric examination. Send the claims folders to the examiner and ask him or her to review the evidentiary record prior to the examination, examine the veteran and render a legible report of medical examination clarifying the appropriate psychiatric diagnoses in this case and, for each such psychiatric disability, an opinion as to whether it is more likely, less likely, or as likely as not that it is causally related to service or proximately due to the veteran's service-connected disabilities, to include the residuals of a total abdominal hysterectomy, with bilateral salpingo-oophorectomy and lysis pelvic adhesions. 6. The veteran is seeking service connection for osteoarthritis of the lumbar spine, osteoarthritis of the cervical spine, fibrocystic breast disease, ovarian remnant syndrome, with endometrioma, chronic residuals of right inguinal hernia repairs, chronic residuals of umbilical hernia repairs, interstitial cystitis and cystitis diverticulum, and a sigmoid colon disability. She is also seeking an initial rating in excess of zero percent for her service-connected osteopenia. Return the claims folders to the VA physician who conducted the veteran's VA joints, gynecological, and intestines medical examinations in February 2002 (Dr. M. Shroff) and ask that physician to once again review the evidentiary record, re-examine the veteran (but only if Dr. Shroff feels that it is necessary or if Dr. Shroff is no longer available), and thereafter render an legible addendum to the reports of February 2002 indicating whether a review of the veteran's entire record was done, and containing answers to the following questions: (a). Whether a diagnosis of osteoarthritis of the lumbar spine is warranted in the veteran's case and, if so, whether it is more likely, less likely, or as likely as not that this particular disability is causally related to service or proximately due to the veteran's service-connected bilateral knee chondromalacia. (b). Whether a diagnosis of osteoarthritis of the cervical spine is warranted in the veteran's case and, if so, whether it is more likely, less likely, or as likely as not that this particular disability is causally related to service or proximately due to the veteran's service-connected bilateral knee chondromalacia. (c). Whether a diagnosis of fibrocystic breast disease is warranted in the veteran's case and, if so, whether it is more likely, less likely, or as likely as not that this particular disability is causally related to service or proximately due to the veteran's service-connected disabilities, to include the residuals of a total abdominal hysterectomy, with bilateral salpingo-oophorectomy and lysis pelvic adhesions. (d). Whether a diagnosis of ovarian remnant syndrome, with endometrioma, as a separate and distinct, chronic disability, is warranted in the veteran's case and, if so, whether it is more likely, less likely, or as likely as not that this particular disability is causally related to service or proximately due to the veteran's service- connected disabilities, to include the residuals of a total abdominal hysterectomy, with bilateral salpingo-oophorectomy and lysis pelvic adhesions. (e). Whether the veteran currently suffers from chronic residuals of right inguinal hernia repairs and, if she does, whether it is more likely, less likely, or as likely as not that this particular disability is causally related to service or proximately due to the veteran's service-connected disabilities, in particular the residuals of a total abdominal hysterectomy, with bilateral salpingo-oophorectomy and lysis pelvic adhesions. (f). Whether the veteran currently suffers from chronic residuals of umbilical hernia repairs and, if she does, whether it is more likely, less likely, or as likely as not that this particular disability is causally related to service or proximately due to the veteran's service-connected disabilities, in particular the residuals of a total abdominal hysterectomy, with bilateral salpingo-oophorectomy and lysis pelvic adhesions. (g). Whether a diagnosis of interstitial cystitis and cystitis diverticulum is warranted in the veteran's case and, if so, whether it is more likely, less likely, or as likely as not that this particular disability is causally related to service or proximately due to the veteran's service- connected disabilities, to include the residuals of a total abdominal hysterectomy, with bilateral salpingo-oophorectomy and lysis pelvic adhesions. (h). Whether the veteran currently suffers from the claimed sigmoid colon disability and, if she does, whether it is more likely, less likely, or as likely as not that this particular disability is causally related to service or proximately due to the veteran's service-connected disabilities, to include the service-connected abdominal wall adhesions and the residuals of a total abdominal hysterectomy, with bilateral salpingo-oophorectomy and lysis pelvic adhesions. (i). What specific symptoms does the veteran currently suffers from, if any, arising from her service- connected osteopenia. In this regard, the examiner should also identify the body parts that are affected by this disability and comment on the presence or absence of objective evidence of pain, limitation of motion of specific joints, spasms, weakness, fatigability, instability, and overall functional impairment due solely to the osteopenia. 7. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. S. KELLER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2002).