Citation Nr: 1123352 Decision Date: 06/20/11 Archive Date: 06/28/11 DOCKET NO. 10-05 958 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable rating for anemia. 2. Entitlement to an initial compensable rating for anterior and posterior intramural uterine fibroid tumors (claimed as abnormal uterine problems to include abnormal bleeding). 3. Entitlement to an initial compensable rating for tension headaches. ATTORNEY FOR THE BOARD Donna D. Ebaugh INTRODUCTION The Veteran served on active duty from May 1988 to July 1988, from August 1990 to June 1991, from January 2003 to January 2005, and from March 2007 to October 2008, as well as periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the RO in St. Petersburg, Florida. Although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, she has not submitted evidence of unemployability, or claimed to be unemployable. In fact, while she reported that she was unemployed due to the recession, she did not report that she was unemployed due to her disabilities. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(c), (d) (2010). First, records should be obtained from Ireland Army Community Hospital in Ft. Knox, Kentucky, from January 2009 to the present. The Board acknowledges that earlier records were associated with the file but notes that the Veteran reported at her May 2009 VA examination that she underwent a procedure in January 2009 that is relevant to her claim regarding uterine fibroids. As these records are federal government records, they should be requested until a negative response is received. 38 U.S.C. § 5103A(b)(3) requires that VA continue any attempts to get federal records "until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile." Similarly, records should be obtained from the Jacksonville Naval Hospital as she specifically indicated that she intended to undergo treatment at the Jacksonville Naval Hospital following the May 2009 VA examination. She also indicated that she underwent a CT scan at the Jacksonville Naval Hospital in January 2009 related to her headache disability. A review of the file indicates that a record of the CT scan has not been associated with the file. The Veteran's complete inpatient and outpatient treatment records should be obtained. Next, the Board observes that an August 2010 deferred rating decision indicated that the Veteran reported that she received treatment at Walter Reed Army Medical Center in May 2009 and that further development was required. Specifically, although some records from WRAMC have been associated with the file, the RO noted that no records dated in May 2009 had been associated with the file. The RO requested the treatment records and received copies of records dated in other months in 2009 and 2010. Only records dated from August to September 2009 were received from the WRAMC, however. No indication as made as to availability of records pre-dating August 2009 or since September 2009. The RO should seek clarification from WRAMC until a negative response is received regarding records dated in May 2009. A review of the record also reveals that the Veteran submitted an authorization and consent form in March 2009 for the request of treatment records from the Winn Army Community Hospital in Ft. Stewart, Georgia, regarding treatment for the Veteran's anemia and gynecological disabilities from 2003 to 2005. While the file contains records from the same institution dated in 1996, and January through May 2004, the file does not contain any record of an attempt to obtain the records for the entire period of the date range referenced in the March 2009 authorization and consent form (January 2003 to January 2005). Further, while the Veteran indicated in her authorization and consent form that the records noted above pertained to her anemia and gynecological disabilities, she has also reported to VA that her headaches began in 2003, which would have been during the timeframe noted in the authorization and consent form. Therefore, while on remand, and for the sake of being thorough, the records from Winn Army Community Hospital should be obtained. Finally, regarding the Veteran's gynecological disability, clarification should be sought from the May 2009 VA examiner. If the examiner is unavailable or the examiner is unable to answer the question without examining the Veteran, then the Veteran should be afforded a new examination. Specifically, clarification should be sought regarding the relationship, if any, between the Veteran's uterine fibroids and her multiple miscarriages. The examiner should opine as to whether the uterine fibroids caused the miscarriages and prevented her from being able to maintain a pregnancy; and if so, whether her uterine fibroid disability would be considered to be loss of use of a creative organ. The Veteran should be advised that failure to report for any scheduled examination may result in the denial of her claim. 38 C.F.R. § 3.655 (2010). Accordingly, the case is REMANDED for the following action: 1. Obtain clinical records from Winn Army Community Hospital in Ft. Stewart, Georgia, for the period from January 2003 to January 2005. Any negative response should be noted. 2. Obtain clinical records from Ireland Army Community Hospital in Ft. Knox, Kentucky, from January 2009 to the present. Any negative response should be noted. 3. Obtain the Veteran's complete inpatient and outpatient treatment records from Jacksonville Naval Hospital from 2005 to the present. Any negative response should be noted. 4. Obtain the Veteran's complete inpatient and outpatient treatment records from Walter Reed Army Medical Center. A specific request should be made for records or reports generated in May 2009. Any negative response should be noted. 5. Seek clarification from the May 2009 VA examiner regarding the Veteran's uterine fibroid disability. If the examiner is unavailable or the examiner is unable to answer the question without examining the Veteran, then the Veteran should be afforded a new examination. Specifically, clarification should be sought regarding the relationship, if any, between the Veteran's uterine fibroids and her multiple miscarriages. The examiner should opine as to whether the uterine fibroids caused the miscarriages and prevented her from being able to maintain a pregnancy; and if so, whether her uterine fibroid disability would be considered to be loss of use of a creative organ. 6. Thereafter, the RO should re-adjudicate the issues on appeal. If any benefit sought remains denied, the Veteran should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to the issues, as well as a summary of the evidence received since the issuance of the last SSOC. An appropriate period of time should be allowed for response. 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. 2010). _________________________________________________ MICHAEL A. HERMAN 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) (2010).