Citation Nr: 1121897 Decision Date: 06/07/11 Archive Date: 06/20/11 DOCKET NO. 07-30 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for allergies. 2. Entitlement to service connection for residuals of a gynecological disorder, to include hysterectomy. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from November 1983 to June 1992 and from September 21, 2001 to September 20, 2002. The Veteran had additional service in the United States Air Force Reserve. This case comes before the Board of Veterans' Appeals (Board) on appeal from two separate rating decisions. A December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (RO) denied the Veteran's claim for service connection for allergies. A September 2006 rating decision of the VA RO, inter alia, denied the Veteran's claim for service connection for a gynecological disorder, claimed as a uterine disorder, ovarian cysts, and a prolapsed uterus. The Veteran timely appealed each of these decisions, and the case was referred to the Board for appellate review. Considering the Veteran's contentions with respect to her claim for a gynecological disorder, in essence the Veteran is seeking service connection for a hysterectomy as a residual of the ovarian cyst that was discovered during military service. Accordingly, the issue has been rephrased as shown on the title page. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board finds that additional development is warranted with respect to the Veteran's claims of entitlement to service connection for both allergies and a residuals of a gynecological disorder, to include hysterectomy. VA must provide a medical examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2010). The third prong, which requires evidence that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. See McLendon, 20 Vet. App. at 83. When determining whether a VA examination is required under 38 U.S.C.A. § 5103A(d)(2), the law requires competent evidence of a disability or symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence indicates an association between the disability and service or another service-connected disability. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Further, once VA provides a medical examination, due process requires that VA notify the veteran prior to the adjudication of the claim of any inability to obtain evidence sought, including a VA examination with medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that "[o]nce VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the [veteran] why one will not or cannot be provided"); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). In the instant case, with regard to the Veteran's claim of entitlement to service connection for allergies, the Veteran has not been provided with a VA examination. The record, however, contains evidence of a current disability: the Veteran has been treated at both VA and private facilities for allergic rhinitis. The first McLendon element, evidence of a current disability, is therefore satisfied. Additionally, the Veteran alleges that she first received treatment for her allergies during her active duty military service. Though the Veteran's service treatment records are silent for any such treatment, the Board observes that the Veteran was provided with prescriptions for allergy medication in February 2002, March 2002, and May 2002, all of which are during the Veteran's period of active service from September 2001 to September 2002. The second McLendon element, an in-service event, injury, or disease, is therefore satisfied. With respect to the third McLendon element, an indication that the claimed disability may be associated with the established event, injury, or disease, the Board observes that while the record does not contain a medical nexus opinion explicitly connecting the Veteran's current allergies to military service, the Veteran contends that she has suffered from allergies since service, and she notes that her medicines have been changed "at least six times." The record additionally demonstrates that the Veteran has sought treatment for her allergy condition consistently since separating from active service. This possibility of an association between her military service and her allergy disability fulfills the third McLendon element. The Board finds, therefore, that a VA examination should be scheduled to determine the nature and severity of the Veteran's allergic rhinitis and the relationship, if any, between this disability and the Veteran's active duty military service. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2010) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). With regard to the Veteran's claim of entitlement to service connection for a gynecological condition, the Veteran underwent a VA examination in August 2006 to determine the nature, severity, and etiology of her gynecological conditions. The VA examiner was informed that the Veteran claimed that a left ovarian cyst that was noted in service caused her to have fibroids, which in turn resulted in her needing a hysterectomy. The examiner was specifically asked to determine the etiology of the Veteran's fibroid tumors. The VA examiner reviewed the Veteran's claims file and noted that the results of a September 2005 diagnostic laparoscopy were essentially unremarkable. The examiner further noted that a subsequent ultrasound examination showed the presence of small uterine fibroids. In an attempt to relieve the Veteran's dyspareunia and other pelvic pain, the Veteran underwent a laparosopically-assisted vaginal hysterectomy in October 2005. The VA examiner noted that the surgeon stated that the Veteran "elected for hysterectomy with hope of relieving her dyspareunia" and that no other indications for surgery were mentioned. Upon physical examination, the examiner noted that the Veteran's gynecological examination was normal. The VA examiner did not offer an etiological opinion, however, regarding the relationship of the Veteran's dyspareunia, pelvic pain, hysterectomy, or other gynecological conditions to her active duty military service. The Board finds that this examination is therefore inadequate for the purpose of rendering a decision in the instant case, and that another VA examination should be scheduled to determine the nature and severity of any current gynecological disability and the relationship, if any, between the ovarian cyst that was noted during service and the Veteran's subsequent gynecological conditions. Accordingly, the case is REMANDED for the following action: 1. The RO or AMC should obtain any additional VA and non-VA treatment records identified by the Veteran. In particular, the RO or AMC should ensure that full copies of treatment records for the Veteran's allergy and gynecological conditions from all relevant VA medical centers have been associated with the claims file. If such records are not available, the RO or AMC should so indicate. All attempts to secure this evidence must be documented in the claims folder by the RO or AMC. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim. The Veteran must then be given an opportunity to respond. 2. The RO should schedule the Veteran for an examination of the Veteran's allergy condition with a VA examiner of appropriate expertise. Following a review of this remand directive, a complete review of the Veteran's claims file, and an examination of the Veteran, the examiner should provide an opinion whether the Veteran currently suffers from an allergy condition, and if so, the examiner should describe the nature and severity of such condition. For any identified allergy condition, the examiner should determine whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran's disorder is etiologically related to the Veteran's period of active duty military service. The examiner must review the Veteran's claims file prior to the examination of the Veteran. The examiner's report must explicitly state that such review occurred. Any indicated studies should be performed, and the rationale for each opinion expressed must be provided. 3. The RO should schedule the Veteran for a gynecological examination with a VA gynecologist. Following a review of this remand directive, a complete review of the Veteran's claims file, and examination of the Veteran, the examiner should provide an opinion whether the Veteran's hysterectomy or any other gynecological residuals are etiologically related to the ovarian cysts that were discovered during active duty military service. Specifically, the examiner should discuss the Veteran's contention that an ovarian cyst discovered during service led her to suffer from fibroids and a prolapsed uterus, and ultimately required her to have a hysterectomy. If it is determined that it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran's hysterectomy or other gynecological residuals are related to the ovarian cyst discovered in service, the examiner should fully describe any such residuals experienced by the Veteran. The examiner must review the Veteran's claims file prior to the examination of the Veteran. The examiner's report must explicitly state that such review occurred. Any indicated studies should be performed, and the rationale for each opinion expressed must be provided. 4. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran is hereby notified that it is her responsibility to report for any scheduled examination and to cooperate in the development of the case. The consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655 (2010). The Veteran has the right to submit additional evidence and argument on the matters that 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2010).