Citation Nr: 0800584 Decision Date: 01/07/08 Archive Date: 01/22/08 DOCKET NO. 03-34 725A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for acid reflux. 2. Entitlement to an initial compensable evaluation for uterine fibroid tumors. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The veteran had active military service from December 1980 to December 1992. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In August 2003 and April 2005, the Board remanded the veteran's claims to the RO for further development. In February 2007, the veteran submitted additional medical evidence, duplicative of that previously considered by the RO. Thus, a waiver of initial RO review is not needed. The issue of the veteran's claim for service connection for acid reflux is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Giving the veteran the benefit of the doubt, her service- connected uterine fibroid disability is manifested by chronic abdominal/pelvic pain, sometimes heavy and irregular menses, and bladder pressure and constipation, essentially requiring continuous treatment with pain medications and feminine hygiene products for the control of symptoms. CONCLUSION OF LAW Resolving doubt in the veteran's favor, the schedular criteria for an initial 10 percent rating, but no more, for uterine fibroid tumors, are met. 38 U.S.C.A. §§ 1155, 5103- 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4116, Diagnostic Code (DC) 7613 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (hereinafter referred to as "the Court") held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. The Court acknowledged in Pelegrini that where the § 5103(a) notice was not mandated at the time of the initial AOJ decision, the AOJ did not err in not providing such notice. Rather, the appellant has the right to content complying notice and proper subsequent VA process. Pelegrini, supra, at 120. The VA General Counsel has issued a precedent opinion interpreting the Court's decision in Pelegrini. In essence, and as pertinent herein, the General Counsel endorsed the notice requirements noted above, and held that, to comply with VCAA requirements, the Board must ensure that complying notice is provided unless the Board makes findings regarding the completeness of the record or as to other facts that would permit [a conclusion] that the notice error was harmless, including an enumeration of all evidence now missing from the record that must be a part of the record for the claimant to prevail on the claim. See VAOPGCPREC 7-2004 (July 16, 2004). Considering the decision of the Court in Pelegrini and the opinion of the General Counsel, the Board finds that the requirements of the VCAA have been satisfied in this matter, as discussed below. Also, during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom Hartman v. Nicholson, 483 F.3d 1311 (Fed Cir. 2007), that held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) applied to all five elements of a service connection claim. Id. In the September 2006 and November 2007 supplemental statements of the case, the RO provided the veteran with notice consistent with the Court's holding in Dingess/Hartman. Further, while the veteran's claim for a compensable rating for uterine fibroid tumors is being granted, the Board leaves to the RO to assign an appropriate effective date for the disability rating and, as set forth below, there can be no possibility of prejudice to her. As set forth herein, no additional notice or development is indicated in the appellant's claim. If appellant is not satisfied with the effective date for the period assigned, further appeal of that matter may be undertaken. See e.g., Hart v. Mansfield, No. 05-2424 (U. S. Vet. App. Nov. 19, 2007). In a July 2002 letter, issued prior to the September 2002 rating decision, and in April and October 2005 letters, the RO informed the appellant of its duty to assist her in substantiating her claim under the VCAA and the effect of this duty upon her claim. We therefore conclude that appropriate notice has been given in this case. The appellant responded to the RO's communications with additional evidence and argument, thus curing (or rendering harmless) any previous omissions. The Board concludes that the notifications received by the appellant adequately complied with the VCAA and subsequent interpretive authority, and that she has not been prejudiced in any way by the notice and assistance provided by the RO. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993); VAOPGCPREC 16-92 (57 Fed. Reg. 49,747 (1992)). Likewise, it appears that all obtainable evidence identified by the appellant relative to her claim has been obtained and associated with the claims file, and that she has not identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. Thus, for these reasons, any failure in the timing or language of VCAA notice by the RO constituted harmless error. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. II. Factual Background The veteran maintains that the severity of her service- connected uterine fibroid tumors warrant a compensable disability rating. In numerous written statements in support of her claim, most recently in February 2007, she said the tumors blocked her bowel and caused severe constipation, and she had excessive bleeding excruciating abdominal and pelvic pain, and irregular periods. She also said that she was advised to have a total hysterectomy due to the disability but feared the surgery. Service medical records indicate that, in April 1991, the veteran had two fibroid tumors in the anterior wall of the uterus. While a solid mass in the left adnexal region was thought probably a fibroid, an ovarian mass could not be excluded. Constipation was also noted. When examined for discharge in September 1992 a gynecological (GYN) disorder was not reported. Post service, a November 1993 VA general medical examination report indicates that the veteran was 5 feet 5 inches tall, and weighed 150 pounds. Diagnoses included a history of fibroid tumors. VA and non-VA medical records and examination reports, dated from 1994 to 2006, are of record. The VA outpatient records document that, in Sepember 1994 and July 1997, results of GYN examinations were normal. In April 1998, VA medical records indicate that the veteran complained of very heavy menstrual cycles with severe cramps and clotting and, in May 1998, small uterine fibroids were noted. At that time, the veteran's menstrual cycle lasted 4 to 5 days with no intermittent spotting or hot flashes. She took Motrin and Tylenol. In April 2000, a VA medical record indicates that the veteran had a normal size uterus. A November 2002 VA outpatient medical record indicates that the veteran had excessive cramps with her periods that were regular and lasted 4 days. She was also told she had fibroids in the past, and complained of constipation with no relief from over-the-counter products. According to a May 2003 VA radiology report, the veteran had a history of menorrhagia and fibroids. Results of an ultrasound of her pelvis included an abnormal pelvic/transvaginal ultrasound with at least seven, moderate- sized uterine fibroids and a slightly enlarged uterus. A prominent endometrial stripe was also noted. When seen in the VA outpatient clinic in May 2003 for an annual Papanikolaou (Pap) smear and pelvic examination, the veteran said she noticed that over the past 3 or 4 years her menstrual cycles were heavier, such that she used more than 30 pads per cycle and, during the first 3 days of the cycle, at least 7 pads daily; she also reported fatigue. According to a March 2004 VA GYN note, the veteran complained of lower abdominal pain/pressure, menorrhagia, and dysmenorrhea. She reported a history of fibroid tumors for 10 years and noticed lengthening of her cycles in addition to increased menstrual flow. She described regular monthly menses that lasted 7 days with heavy flow for 5 or 6 days, without intermenstrual bleeding. She had weakness/fatigue and mood swings around her cycles. A history of abnormal Pap smears was noted in the distant past, with results of the last May 2003 test within normal limits. The veteran complained of dyspareunia and pelvic pressure with urinary symptoms. On genitourinary examination, a 14-week sized uterus with posterior fibroid tumor was palpable. The adnexa were nontender without masses bilaterally. The assessment included menorrhagia and pelvic pain, and that the veteran already used non-steroidal anti-inflammatory drugs (NSAIDs) with little relief and wanted to try hormonal therapy. She subsequently received a Depo Provera injection. An August 2005 VA examination report indicates that the examiner reviewed the veteran's medical records. It was noted that the veteran reported abdominal pain starting in 1990 when an ultrasound showed uterine fibroids. After her child's birth, she had abdominal pain, heavy periods, and intense cramping. She currently complained of increasingly heavy periods with intense pain, and irregular menses. Her menses were irregular and very heavy, and she was uncertain when bleeding could occur. She had constant, daily abdominal pain. The severity of pain with her menstrual cycle caused her to miss approximately two days of work per month. Treatment included a trial of Depo Provera injection in 2004 when she did not have periods for several months but continued to have abdominal pain. When her periods resumed, her pain and cramping restarted. She used Advil or Motrin for pain that was helpful for a few hours. A hysterectomy was recommended. The veteran also had increased difficulty with constipation. She regularly used a laxative for bowel movements and denied any problems with urination, except with some stress incontinence with sneeze, coughing, or ascending stairs. She said results of her last Pap smear in December 2004 were within normal limits. An enlarged uterus was noted at that time. On examination, the veteran's external genitalia were within normal limits. Visual examination of the uterus demonstrated no lesions, with moderate smooth white mucous of the vaginal vault, positive for cervical motion tenderness. Adnexa did not appear full. Palpation of the uterus demonstrated enlargement and anterior displacement. Results of the May 2003 ultrasound were noted. Diagnoses included menometrorrhagia, an enlarged uterus, and at least 7 uterine fibroids. A November 2005 VA medical record indicates that the veteran was seen for a yearly Pap smear and pelvic examination. It was noted that her menses were irregular, and her heavy cycles were less frequent, with some monthly spotting. She last saw a gynecologist in May 2004 and was treated with Depo Provera that helped with menorrhagia and cramping but caused weight gain. A GYN consultation was recommended for a cervical polyp noted on examination and the fibroid tumors. According to a January 2006 VA GYN physician's note, the veteran was seen with complaints of irregular bleeding, noted to have an enlarged uterus, and results of an ultrasound showed an enlarged fibroid uterus. The veteran complained of occasional hot flashes that were not too significant. She had worsening bleeding during the last several months and increased pelvic pain. She was seen for removal of a cervical polyp, endometrial biopsy, and surgical discussion. Pelvic examination revealed normal appearing external female genitalia without lesion. The vagina was moist without lesions or discharge. The cervical polyp was removed without difficulty. The uterus was enlarged to about an 18-week size with a large fibroid in the right adnexa. An endometrial biopsy was performed. The clinical impression was enlarged fibroid uterus that caused irregular bleeding and a cervical polyp. A total abdominal hysterectomy was advised, given the size of the veteran's uterus and her history of irregular bleeding. A February 2006 VA GYN consultation record indicates that results of the cervical polyp and endometrial biopsies were benign and the veteran's uterus was 18-week size on examination at that time. The veteran discussed a hysterectomy that was previously recommended by the gynecologist. Other options were considered but, given the veteran's uterus size, and her symtoms of pelvic pressure, constipation, and bladder pressure, the physician recommended the total hysterectomy, that was scheduled in June 2006. An October 2006 private medical record reflects the veteran's complaints of chronic constipation since she was a teenager. Her general health was considered abnormal evidently due to her weight. Diagnoses included chronic constipation and irregular menses. When seen in the VA outpatient clinic in October 2006 for routine follow up regarding her uterine fibroids and bleeding, it was noted that the veteran refused a hysterectomy. She had no significant anemia, and complained of constipation for which she tried different laxatives that did not work well. On examination she weighed 210 pounds. B. Legal Analysis Disability ratings are based on the average impairment of earning capacity resulting from each disability. The percentage ratings for each diagnostic code, as set forth in the VA's Schedule for Rating Disabilities, codified in 38 C.F.R. Part 4 (2007), represent the average impairment of earning capacity resulting from disability. The Board notes that the September 2002 rating decision granted service connection and the currently assigned noncompensable evaluation. In July 2003, the RO received the veteran's notice of disagreement with the disability evaluation awarded to her service-connected uterine fibroid tumors. The Court addressed the distinction between a veteran's dissatisfaction with the initial rating assigned following a grant of entitlement to compensation, and a later claim for an increased rating. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Court noted that the rule from Francisco v. Brown, 7 Vet. App. 55, 58 (1994) as to the primary importance of the present level of disability, is not necessarily applicable to the assignment of an initial rating following an original award of service connection for that disability. Rather, the Court held that, at the time of an initial rating, separate ratings could be assigned for separate periods of time based upon the facts found - a practice known as assigning "staged" ratings. See also, Hart, supra. The veteran was assigned a noncompensable rating for her service-connected uterine fibroid tumors, under 38 C.F.R. § 4.115, DC 7613. DC 7613 is designated for disease, injury, or adhesions of the uterus that are rated under the General Rating Formula for Disease, Injury, or Adhesions of the Female Reproductive Organs. Under the formula, symtoms that do not require continuous treatment warrant a noncompensable rating, and a 10 percent rating is assigned for disease, injury, or adhesions of the uterus where symptoms require continuous treatment. Id. A 30 percent rating is warranted where symptoms cannot be controlled by continuous treatment. Id. Under DC 7622 for displacement of the uterus, marked displacement and frequent or continuous menstrual disturbances, provides a maximum rating of 30 percent. A 10 percent rating is warranted for adhesions and irregular menstruation. See 38 C.F.R. § 4.116, DC 7622 (2007). Under DC 7628, for benign neoplasm of the gynecological system or breast, the disorder is rated as impairment in function of urinary or gynecological systems, or the skin. 38 C.F.R. § 4.116, DC 7628 (2007). Under DC 7629, for endometriosis, lesions involving bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms are rated as 50 percent disabling. 38 C.F.R. § 4.116, DC 7629 (2007). Pelvic pain or heavy or irregular bleeding not controlled by treatment is rated as 30 percent disabling. Id. Pelvic pain or heavy or irregular bleeding requiring continuous treatment for control is rated as 10 percent disabling. Note: Diagnosis of endometriosis must be substantiated by laparoscopy. Id. Further, special monthly compensation is appropriate when a veteran, as the result of a service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. The uterus and cervix can be considered creative organs. 38 U.S.C.A. § 1114(k); 38 C.F.R. § 3.350(a)(1). In this instance, the veteran has sustained no anatomical loss of use of her creative organ. The evidence of record has not demonstrated any disease, injury, or adhesions of the fallopian tube, (including pelvic inflammatory disease (PID)) to warrant an increased rating under Diagnostic Code 7614. At most, the evidence demonstrates pelvic pain that has been attributed to fibroids, not pelvic inflammatory disease. In addition, the evidence of record fails to warrant a higher rating on the basis of disease, injury, or adhesions of the ovary under Diagnostic Code 7615 because evidence and treatment related to the enlarged or cystic ovaries was not reported in the medical evidence. See 38 C.F.R. § 4.116, DCs 7614, 7615 (2007). Although an ovarian mass was considered in the 1991 service medical record, it was not shown in the May 2003 VA ultrasound and not diagnosed in any other clinical record. Id. As well, DC 7629 for endometriosis does not provide a basis for a compensable evaluation as the veteran's pelvic pain that requires continuous treatment for control has not been shown by diagnostic tests to be caused by endometriosis. Diagnostic Code 7613 for disease, injury, or adhesions of the uterus is most applicable in view of the more recent VA clinic assessments that included pelvic pain and menorrhagia (noted in March 2004) and menometrorrhagia, enlarged uterus, and seven uterine fibroids (noted by the August 2005 VA examiner). In January 2006, a VA gynecologist diagnosed an enlarged fibroid uterus that caused irregular bleeding and a cervical polyp. Hence, the objective evidence shows that the veteran's enlarged uterus due to fibroids may be contributing to pain and menorrhagia that was noted in March 2004, August 2005, and in January 2006 by a VA gynecologist. The Board also notes that the VA treatment records show the adnexa were non-tender in 2004. The Board further observes that the evidence shows the veteran complained of pain with periods. In her written statements, she reported having severe menstrual cramps with heavy bleeding. Her menses in March 2004 were documented as being seven days in duration. The veteran's complaints of pelvic pain/ abdominal pain have been consistently treated with Motrin and Tylenol. The VA ultrasound performed in May 2003 showed seven uterine fibroids. Indeed, the evidence does show that fibroids may be the source of the veteran's chronic pelvic pain. Specifically, the VA gynecologist's diagnostic impression in January 2006, after examining the veteran for complaints of irregular bleeding, was enlarged fibroid uterus that caused irregular bleeding and a cervical polyp. The Board notes that, in February 2006, the VA gynecologist recommended that the veteran undergo a total abdominal hysterectomy due to the veteran's uterus size, and her symptoms of pelvic pressure, constipation, and bladder pressure. It is interesting to note that prior to that clinical visit, in March 2004, the veteran received an injection of hormone therapy (Depo Provera) to reduce her symtoms but told the August 2005 VA examiner that her pain and cramping resumed when her periods resumed after several months. The February 2006 VA medical record signed by the VA gynecologist shows that the uterus was 18-week in size. While a total hysterectomy was recommended and apparently scheduled in June 2006, it appears that the veteran did not undergo the procedure. Last, the evidence of record has not demonstrated marked displacement and frequent or continuous menstrual disturbances to warrant a higher rating under Diagnostic Code 7622. 38 C.F.R. § 4.116. In view of the foregoing, and reading the objective medical evidence in the light most favorable to the veteran, the Board finds that, as supported by the evidence of record, her uterine fibroid tumors warrant an initial 10 percent rating, and no more, for symptoms of chronic abdominal/ pelvic pain, heavy menses, and daily and ongoing symtoms including constipation and bladder pressure requiring continuous treatment with pain medications and feminine hygiene products. The evidence does not demonstrate that the symptoms are not controlled by continuous treatment. The benefit of the doubt has been found in the veteran's favor to this limited extent. At no point does the record present evidence sufficient to invoke the procedures for the assignment of any higher evaluation on an extra-schedular basis, pursuant to 38 C.F.R. § 3.321(b)(1) (2007). In this regard, the Board notes that the gynecological disability is objectively shown to markedly interfere with employment (i.e., beyond that contemplated in the 10 percent rating assigned herein) when all the evidence of record is considered for the period in question. There also is no objective evidence that the disability warrants frequent periods of hospitalization, or otherwise renders impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1); see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally we note that, in view of the holding in Fenderson, supra, the Board has considered whether the veteran is entitled to a "staged" rating for her service-connected uterine fibroid tumors, as the Court indicated can be done in this type of case. Based upon the record, we find that at no time since the veteran filed hers original claim for service connection has the disability on appeal been more disabling than as currently rated under the present decision of the Board. ORDER An initial 10 percent rating, but no more, for uterine fibroid tumors is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND The veteran also seeks service connection for acid reflux that she contends was incurred in service and that she continuously had since that time. She points to a 1991 pregnancy questionnaire on which she reported having daily heartburn in support of her claim and maintains that she experienced the same symtoms after discharge and to the present time. In written statements in support of her claim, including in July 2004 and February 2007, she said that, in 1996, a VA physician diagnosed acid reflux. In June 2003, a VA examiner diagnosed gastroesophageal reflux diease (GERD). This examiner noted that the veteran started having problems with acid reflux in 1996 and started taking prescribed medication. The doctor also said that pregnancies were associated with heartburn that resolved when the pregnancy ended. The veteran was symptom free for about three or four years before being placed on prescribed medication. The VA examiner opined that the veteran's acid reflux was not related to service. Despite the Board's 2005 remand, no records dated earlier than 1995 were obtained to show any treatment for acid reflux before 1996. However, the Board notes that in August 2002, the veteran reported taking Motrin 200 milligrams (mgs.) as needed with some relief and no gastrointestinal distress and that a physician's assistant then prescribed 800 mg. for pain and inflammation. A November 2002 VA outpatient record indicates that she had gastritis, that the examining physician apparently associated with her taking NSAIDs. Records indicate that she has told VA physicians that she took Motrin and Advil for abdominal pain - evidently associated at least in part with her service-connected uterine fibroid tumors, as noted in the May 2003 VA outpatient record and August 2005 VA examination report. Secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2007). To establish service connection for a disability on a secondary basis, there must be evidence sufficent to show that a current disability exists and that the current disability was either caused by or aggravated by a service- connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (2006). Additionally, when aggravation of a non-service- connected disability is proximately due to or the result of a service-connected disorder, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id.; 38 C.F.R. § 3.310(b) (2007)). Here, the record does not show that the June 2003 VA examiner was asked to comment on whether the veteran had acid reflux or gastritis due to taking NSAIDs for pelvic and abdominal pain associated with her service-connected uterine fibroid tumors. Thus, in the interest of due process, the Board is of the opinion that the veteran should be afforded another opportunity to undergo VA gastrointestinal examination to determine the etiology of any gastrointestinal disorder found to be present. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain all medical records regarding the veteran's treatment at the VA medical center in Columbia, and any other VA or non-VA medical facility identified by her, for the period from October 2006 to the present. If any records are unavailable, that should be indicated in writing in the file, and the veteran and her representative should be so advised in writing. 2. The veteran should be scheduled for a VA gastrointestinal examination performed by an appropriate physician, such as a gastroenterologist, to determine the etiology of any diagnosed gastrointestinal disorder(s), including acid reflux or gastritis, found to be present. A complete history of the claimed gastrointestinal disorder(s) should be obtained from the veteran. All indicated tests and studies should be completed and all clinical findings reported in detail. Based on a review of the claims files, and the examination findings, the examiner is requested to address the following. a. The examiner should identify all currently present gastrointestinal disorders. b. If the veteran is found to have acid reflux, the examiner is requested to render an opinion as to whether it is at least as likely as not (i.e., a likelihood of 50 percent or more) that any currently diagnosed acid reflux is a result of service (including the findings noted on the 1991 in- service pregnancy questionnaire) or whether such an etiology or relationship is unlikely (i.e., less than a 50-50 probability). c. For each such gastrointestinal disorder identified, the physician should proffer an opinion, with supporting analysis, as to the likelihood that any diagnosed gastrointestinal disorder was caused by or is the result of the veteran's service-connected uterine fibroid tumors (for which she took NSAIDs for abdominal pain). The degree of gastrointestinal disorder that would not be present but for the service- connected uterine fibroid tumor disability should be identified. d. The examiner is also requested to render an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that any currently diagnosed gastrointestinal disorder is permanently aggravated by the veteran's service- connected uterine fibroid disability or whether such a relationship is unlikely (i.e., less than a 50-50 probability). The examiner should be advised that aggravation is defined, for legal purposes, as a worsening of the underlying condition versus a temporary flare-up of symptoms. e. A rationale should be provided for all opinions expressed. In rendering an opinion, the examiner is particularly requested to address the opinion expressed by the June 2003 VA examiner (to the effect that that the veteran's acid reflux was not related to her active military service). The veteran's medical records must be made available for the examiner to review and the examination report should indicate whether the examiner reviewed the veteran's medical records. NOTE: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it 3. The veteran should be given adequate written notice of the date and place of any requested examination. A copy of all notifications must be associated with the claims file. The veteran is hereby advised that failure to report for a scheduled VA examination without good cause shown may have an adverse effect on her claim. 4. Then, the RO/AMC should readjudicate the veteran's claim for service connection for acid reflux, to include as secondary to her service-connected uterine fibroid tumors. If the benefits sought on appeal remain denied, the veteran and her representative should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues on appeal since the November 2007 SSOC. An appropriate period of time should be allowed for response. 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. 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. 2007). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs