Citation Nr: 0810474 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 95-14 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a gynecological disorder, to include endometriosis, ovarian cyst and residuals of bilateral salpingo-oophorectomy and hysterectomy. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEAING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served on active duty from February 1980 to February 1983. This appeal came before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a July 1994 rating decision of the VA Regional Office (RO) in Cleveland, Ohio that denied service connection for endometriosis, a total hysterectomy and bilateral salpingo-oophorectomy. The veteran presented testimony on personal hearing in February 1997 before the undersigned Veterans Law Judge sitting at Cleveland, Ohio. The case has since been remanded by Board decisions in April 1997, October 1998, and March 2004. Following review of the record, the appeal is once again REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board finds that this case must unfortunately be remanded for further development. However, additional information is needed which is critical to the proper adjudication of this claim. The appellant's representative recognizes the need for further development and requested a remand in the Informal Hearing Presentation dated in February 2008. The record reflects that pursuant to the most recent Board remand in March 2004, it was requested that a physical examination be performed in order to determine whether the appellant currently had a gynecological condition that had its inception in service or was a likely outcome of symptoms she experienced during active duty. The examiner was asked to express an opinion as to whether it was at least as likely as not that gynecological problems demonstrated during service were related to any postservice gynecological pathology, including ovarian cysts or endometriosis, and if the clinical evidence at that time demonstrated that it was at least as likely as not that endometriosis was incurred in service. The record reflects that the veteran did not report for VA examination scheduled in March 2007, and no reason was given for her failure to appear. In any event, the claims folder was reviewed by a board-certified gynecologist who stated that it was not necessary that she be there in person for examination. Following review of the claims folder, the examiner opined that the veteran did not have endometriosis in service, nor was it diagnosed at final pathology for a hysterectomy [in 1993]. It was found that on the final pathology report, what was thought was an endometrioma was in fact a hemorrhagic corpus luteum cyst. In the Informal Hearing Report dated in February 2008, the appellant's accredited representative points out that the March 2007 VA examiner did not provide an opinion as to whether the veteran's symptoms in service were consistent with hemorrhagic corpus luteum cyst, or whether the cyst was the cause of or contributed to the total hysterectomy. In pertinent part, it was found a diagnosis of her condition was not as important as determining whether the gynecology symptoms in service resulted in the current gynecological condition. The representative requested that the case be remanded to address this deficiency. The Board agrees and finds that the most recent VA examination in March 2007 is inadequate for adjudication purposes. The Board points out that while the examiner found that endometriosis was not related to service, no opinion was provided as to whether symptoms in service were related to the condition leading to hysterectomy. In view of such, the Board finds that this case should be remanded for a supplemental report and clarifying opinion. Accordingly, the case is REMANDED for the following actions: 1. The case should be referred to the same physician who examined the veteran in March 2007 (or another physician if that examiner is no longer available) for a response to the following question which should be based on the evidence of record. The claims folder and a copy of this remand should be provided to the examiner. The examiner should indicate whether or not the claims folder and remand were reviewed. The examiner should respond to the following question. Did the veteran's gynecological symptoms during service lead to a chronic gynecological condition that ultimately led to hysterectomy? The examiner should provide an opinion as to why or why not, and a well-reasoned response in this regard. 2. The RO should ensure that the medical report requested above complies with this remand, especially with respect to the instructions to provide a medical opinion. If the report is insufficient, or if any requested action is not taken or is deficient, it should be returned to the examiner for correction. See Stegall v. West, 11 Vet. App. 268 (1998). 3. After taking any further development deemed appropriate, the RO should re-adjudicate the issue on appeal. If the benefit is not granted, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond before the case is returned to the Board. 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). _________________________________________________ F. JUDGE FLOWERS 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) (2007).