Citation Nr: 1237114 Decision Date: 10/25/12 Archive Date: 11/09/12 DOCKET NO. 09-37 649 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an endocrine system disability, to include hyperthyroidism, thyroiditis, and pituitary microadenoma. 2. Entitlement to an initial rating higher than 10 percent for dyspepsia with helicobacter pylori. 3. Entitlement to a higher initial rating for a right ovarian cyst, rated 10 percent disabling prior to August 25, 2011, and 30 percent disabling since that date. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from April 2003 to January 2008. These matters initially came before the Board of Veterans' Appeals (Board) from July 2008 and May 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In the July 2008 decision, the RO granted service connection for dyspepsia with helicobacter pylori and residuals of a right ovarian cyst and assigned initial 10 percent and noncompensable disability ratings, respectively, both effective January 28, 2008. In the May 2009 decision, the RO denied entitlement to service connection for hypothyroidism. In an August 2010 decision, a Decision Review Officer (DRO) assigned an initial 10 percent rating for a right ovarian cyst, effective January 28, 2008. In August 2011, the Board remanded these matters for further development. In August 2012, the Appeals Management Center (AMC) assigned an initial 30 percent rating for a right ovarian cyst, effective August 25, 2011. Although the Veteran's initial service connection claim referred to a thyroid disability and both the agency of original jurisdiction (AOJ) and the Board have previously characterized the issue on appeal as being entitlement to service connection for hypothyroidism, the United States Court of Appeals for Veterans Claims (Court) has held that when a claimant makes a claim, she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As explained below, the evidence reflects that the Veteran's reported symptoms are the result of an endocrine system disability other than hypothyroidism. Thus, the Board has recharacterized the issue as a claim of entitlement to service connection for an endocrine system disability, to include hypothyroidism, thyroiditis, and pituitary microadenoma. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. In a June 2009 letter, the Veteran raised the issue of entitlement to service connection for a bilateral hip disability. This issue has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to a higher initial rating for a right ovarian cyst is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC, in Washington, DC. FINDINGS OF FACT 1. The Veteran experienced symptoms of an endocrine system disability in service and there is post-service continuity of symptomatology. 2. Since January 28, 2008, the Veteran's dyspepsia with helicobacter pylori has been manifested by epigastric pain and tenderness, nausea, vomiting, indigestion, heartburn, and regurgitation, without dysphagia or severe impairment of health. CONCLUSIONS OF LAW 1. The criteria for service connection for an endocrine system disability have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2011). 2. The criteria for an initial rating higher than 10 percent for dyspepsia with helicobacter pylori have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 3.321(b), 4.1, 4.2, 4.7, 4.10, 4.21, 4.114, Diagnostic Code (DC) 7346 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). As the Board is granting the claim of service connection for an endocrine system disability, the claim is substantiated and there are no further VCAA duties as to that issue. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). With regard to the appeal for a higher initial rating for dyspepsia with helicobacter pylori, the appeal arises from the Veteran's disagreement with the initial rating assigned after the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim of service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). The Court has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as initial rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of such error in this case. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA obtained the Veteran's service treatment records, pertinent service personnel records, and all of the relevant identified post-service VA treatment records and private medical records. In addition, the Veteran was afforded VA examinations for dyspepsia with helicobacter pylori. In its August 2011 remand, the Board instructed the AOJ to, among other things, afford the Veteran a VA examination to assess the severity of her service-connected dyspepsia with helicobacter pylori. A VA examination was conducted in August 2011. Such examination was thorough, contained all pertinent findings, and was responsive to the questions posed. Therefore, the AOJ substantially complied with all of the Board's August 2011 remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Analysis Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, medical records include various endocrine system diagnoses. For example, a July 2010 examination report from the Florida Mayo Clinic and the August 2011 VA examination report reflect a diagnosis of a pituitary adenoma. Thus, a current endocrine system disability has been demonstrated. As will be explained below, there is also evidence of in-service symptoms of an endocrine system disability and of a continuity of symptomatology linking the in-service symptoms to the current endocrine system disability. Service treatment records include November 2003 and May 2006 laboratory reports of low thyroid-stimulating hormone levels. Further, an endocrine imbalance was diagnosed on several occasions and throughout service the Veteran reported such symptoms as arthralgia, irregular menstrual cycles, heart palpitations, sleep impairment, weakness, and headaches. Medical records dated from August 2008 to July 2010, VA examination reports dated in May 2009 and August 2011, the Veteran's January 2009 claim and September 2009 notice of disagreement (VA Form 9), as well as statements from the Veteran dated in June 2009 and June 2010 include reports of low thyroid levels, elevated liver enzymes and male hormone levels, tiredness, fatigue, weight fluctuations, abnormal lactation, abnormal hair growth, skin abnormalities, headaches, arthralgia, muscle cramps, muscle pain, hot flushes/sweating, abnormal lactation, impaired sleep, heart palpitations, irregular menstrual cycles, moodiness, temperature sensitivity, pre-diabetes, and insulin resistance. Many of these symptoms had begun in service and persisted ever since that time. Objective examinations revealed an occasionally enlarged thyroid, dry skin, tachycardia, somewhat diminished to brisker than average ankle jerks bilaterally, somewhat diminished knee jerks bilaterally, muscle cramps, bilateral galactorrhea, abnormal hair growth, and hypothermia. Diagnoses of hypo/hyperthyroidism, nonpuerperal galactorrhea, amenorrhea, dysmetabolic syndrome X, hyperprolactinemia, thyroiditis, hirsutism, pituitary dysfunction, and pituitary adenoma were provided and symptoms such as insomnia, heart palpitations, and weight gain were attributed to these diagnoses. The physician assistant who conducted the May 2009 VA examination opined that it would be mere speculation to offer an opinion about any relationship between the Veteran's laboratory results in service and her current thyroid problems, diagnosed as thyroiditis. The physician who conducted the May 2011 VA examination opined that the Veteran had a pituitary adenoma and that there was no objective medical evidence of hyperthyroidism. Rather, the Veteran's low thyroid-stimulating hormone levels were secondary to pituitary hormone abnormalities. The May 2009 opinion that it would be speculation to conclude whether any relationship existed between the Veteran's laboratory results in service and her current thyroid problems is of no probative value because it is unaccompanied by any further explanation or reasoning and constitutes "non-evidence" that weighs neither for nor against the claim. See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009); Jones v. Shinseki, 23 Vet. App. 382 (2010) (an examiner must provide a rationale for saying that an opinion could not be provided without resort to speculation, and should provide a statement as to whether there is additional evidence that could enable an opinion to be provided). The Veteran is competent to report the symptoms of her endocrine system disability, such as heart palpitations, sleep impairment, and weakness, as well as a continuity of symptomatology. See Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336. Moreover, low thyroid-stimulating hormone levels were recorded in service (a symptom which has been attributed to the currently diagnosed pituitary disability). Furthermore, there is evidence of many of the Veteran's reported symptoms in her service treatment records. There is no affirmative evidence to explicitly contradict her reports and her reports are not inconsistent with the evidence of record. The Board therefore finds that her reports of a continuity of symptomatology are credible in this case. In sum, the weight of the evidence reflects that the Veteran experienced symptoms of an endocrine system disability in service, that she has been diagnosed as having a current endocrine system disability, and that there has been a continuity of symptomatology in the years since service. In light of this evidence and resolving reasonable doubt in favor of the Veteran, the criteria for service connection for the currently diagnosed endocrine system disability, however diagnosed, have been met. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. § 3.303. Higher Initial Rating Disability evaluations are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Veteran's dyspepsia with helicobacter pylori is currently rated under 38 C.F.R. § 4.114, DCs 7399-7346. The use of DCs 7399-7346 reflects that there is no diagnostic code specifically applicable to the Veteran's dyspepsia, and that this disability is rated by analogy to hiatal hernia under DC 7346. See 38 C.F.R. § 4.20 (2011) (allowing for rating of unlisted condition by analogy to closely related disease or injury). Under DC 7346, the following ratings apply: a 10 percent rating is warranted for hiatal hernia with two or more of the symptoms for the 30 percent rating of less severity; a 30 percent rating is warranted for hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of a considerable impairment of health; and a 60 percent rating is warranted for hiatal hernia with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, DC 7346. During a May 2008 VA examination, the Veteran reported that she did not experience any black stools, blood or "coffee grounds" in vomited material. She also denied diarrhea, constipation, hemorrhoids, hernia, abdominal swelling, fecal incontinence, pancreatitis, gallbladder attacks, or weight loss. However, there was constant dull/burning epigastric pain, nausea, occasional vomiting, indigestion, and heartburn. Such symptoms had been stable since their onset and were treated with diet modification, but they responded poorly to such treatment. Objective examination of the abdomen/gastrointestinal system was normal and there were no palpable masses, hernia, ascites, or any abdominal guarding. Also, bowel sounds were normal and both the liver and spleen were normal. The Veteran was diagnosed with gastroesophageal reflux disease (GERD), dyspepsia, and a history of helicobacter pylori. The disability had moderate to severe effects on activities of daily living. Although the disability reportedly had significant effects on the Veteran's usual occupation, she was employed full time and had not lost any time from work during the previous 12 months. VA treatment records dated from June 2008 to June 2009 include reports of chronic dyspepsia, dull stomach pain, occasional nausea and vomiting, and heartburn. There were no black stools, blood or "coffee grounds" in vomited material, weight loss, diarrhea, constipation, bright red blood per rectum, recurrent abdominal distension, excessive eructation or flatus, peptic ulcer disease, colon polyps, inflammatory bowel disease, or any other gastrointestinal problems. The Veteran's symptoms were treated with medications, but they were reportedly only occasionally effective. Examinations revealed positive bowel sounds and occasional epigastric tenderness, but no hepatosplenomegaly, palpable masses, or organomegaly. Testing was positive for helicobacter pylori during a September 2008 VA primary care evaluation, but the nurse practitioner who conducted the examination noted that results showed the presence of antibodies which would always be present. An esophagogastroduodenoscopy was conducted in June 2009 and revealed an irregular Z-line in the distal esophagus, erythema in the body and antrum of the stomach, and a hiatal hernia. However, there was a normal duodenum. The Veteran was diagnosed with GERD. During an August 2011 VA examination the Veteran reported intermittent (approximately once a week) episodes of moderate upper abdominal (substernal) pain and nausea. Such episodes generally occurred in the morning after breakfast, lasted for several hours at a time, and were associated with vomiting and diarrhea approximately once a month. The Veteran was either unable to work or had to leave work early during such monthly episodes of vomiting and diarrhea. She also experienced daily heartburn/pyrosis and weekly regurgitation of clear fluid and partially digested food. However, there was no history of hospitalization or surgery relating to the esophagus, trauma to the esophagus, esophageal neoplasm, dysphagia, hematemesis or melena, or esophageal dilation. Her symptoms were treated with medication. Objective examination revealed that the Veteran's overall general health was fair and that there were no signs of anemia, significant weight loss, or malnutrition. The mid epigastric region was mildly tender to palpation, but there was no rebound, guarding, or masses. The Veteran was employed full time as a secretary and had lost approximately 3 weeks of work during the previous 12 months due to her stomach symptoms. Overall, the service-connected dyspepsia with helicobacter pylori had moderate to significant effects on the Veteran's usual occupation due to pain and other symptoms which resulted in increased tardiness and absenteeism. However, there were no effects on her activities of daily living other than mild effects on feeding. The above evidence indicates that since the effective date of service connection, the Veteran's service-connected dyspepsia with helicobacter pylori has been manifested by epigastric (substernal) pain/tenderness, nausea, vomiting, indigestion/dyspepsia, heartburn (pyrosis), and regurgitation. However, there is no evidence of any dysphagia and the Veteran specifically denied any history of dysphagia during the August 2011 VA examination. The Court has held that where rating criteria are worded in the conjunctive with the use of the word "and," each of the specified criteria must be present to warrant the specified percentage requirements. Camacho v. Nicholson, 21 Vet. App. 360 (2007). However, the holding in Camacho only applies where the rating criteria are "successive," meaning that the criteria for the lower rating plus additional criteria are required before the next higher rating is warranted. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). In other words, the holding in Comacho does not apply where a veteran could potentially establish entitlement to the next higher rating without meeting any of the criteria for the lower rating. Id. In this case, the criteria for a 30 percent rating under DC 7346 incorporate those required for the 10 percent rating, and are "successive." As such, all of the additional criteria would be required for the next higher rating. See Tatum, 23 Vet. App. at 156; Camacho, 21 Vet. App. at 360. As there is no evidence of dysphagia at any time since the effective date of service connection, the criteria for a 30 percent rating under DC 7346 have not been met in this case. See Comacho, 21 Vet. App. at 360; 38 C.F.R. § 4.114, DC 7346. Further, although the Veteran's service-connected dyspepsia with helicobacter pylori reportedly had moderate to severe effects on activities of daily living and significant effects on the Veteran's usual occupation during the May 2008 VA examination, she has maintained full time employment throughout the appeal period, she had not lost any time from work due to her disability at the time of the May 2008 VA examination and had lost only 3 weeks of work at the time of the August 2011 VA examination, and her disability had only mild effects on feeding at the time of the August 2011 VA examination with no other effects on activities of daily living at that time. Further, her overall general health was reported as fair during the August 2011 VA examination. Thus, the evidence does not reflect severe impairment of health due to the Veteran's service-connected gastrointestinal disability so as to warrant a 60 percent rating under DC 7346. In sum, the symptoms associated with the Veteran's service-connected dyspepsia with helicobacter pylori have most closely approximated the criteria for a 10 percent rating under DC 7346 during the entire appeal period. Thus, an initial rating higher than 10 percent is not warranted at any time since the effective date of service connection. Accordingly, the appeal must be denied. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.114, DC 7346. Extraschedular Consideration Pursuant to 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242, 244 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular criteria for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). The symptoms of the Veteran's dyspepsia with helicobacter pylori are epigastric pain and tenderness, indigestion, nausea, vomiting, heartburn, and regurgitation. These symptoms are specifically contemplated by the rating criteria under DC 7346. Thus, referral for consideration of an extraschedular evaluation is not warranted. 38 C.F.R. § 3.321(b)(1). Total Disability Rating Based on Individual Unemployability (TDIU) The Court has held that entitlement to a TDIU is an element of all appeals for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). The evidence reflects that the Veteran has reportedly been gainfully employed in full time employment in accounting and as a clerk and administrative assistant throughout the appeal period. As there is no evidence of unemployability, a claim for a TDIU under Roberson and Rice is not raised. ORDER Entitlement to service connection for an endocrine system disability is granted, subject to governing criteria applicable to the payment of monetary benefits. Entitlement to an initial rating higher than 10 percent for dyspepsia with helicobacter pylori is denied. REMAND The VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). An August 2011 VA gynecological examination report makes reference to VA gynecological evaluations, the records of which are not in the claims file. For example, the Veteran underwent an MRI of the pelvis at the VA outpatient clinic in Orlando, Florida (VAOPC Orlando) in September 2010. The most recent VA treatment records in the claims file are contained in the Tampa Vista electronic records system and are dated in January 2010 and from VAOPC Orlando dated in April 2010. There are no additional records among the Veteran's paperless records in the Virtual VA system. Thus, it appears that there are additional VA treatment records that have not yet been obtained. VA has a duty to obtain any additional relevant records. 38 U.S.C.A. § 5103A(b),(c); Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992). Additionally, the May 2009 VA examination report includes a report of treatment for gynecological problems by Dr. M. However, there are no treatment records from this physician in the claims file. Also, a July 2010 examination report from the Florida Mayo Clinic reflects that the Veteran was evaluated for ovarian problems and that she was scheduled for follow up treatment in 3 months. The most recent treatment records from that facility in the claims file are dated in July 2010. When VA becomes aware of private treatment records it will specifically notify the Veteran of the records and provide a release to obtain the records. If the Veteran does not provide the release, VA has undertaken to request that the Veteran obtain the records. 38 C.F.R. § 3.159(e)(2). These steps have not yet been taken with respect to any additional relevant treatment records from the above mentioned private treatment providers. Thus, a remand is also necessary to attempt to obtain these records. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all records of the Veteran's treatment for a gynecological disability contained in the Tampa Vista electronic records system from January 2010 to the present, from VAOPC Orlando from April 2010 to the present, and from any other sufficiently identified VA facility. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained or it is reasonably certain that they do not exist or that further efforts would be futile. 2. The AOJ should ask the Veteran to complete authorizations for VA to obtain all records of her treatment for a gynecological disability from Dr. M. and from the Florida Mayo Clinic. All efforts to obtain these records must be documented in the claims file. If the Veteran fails to furnish any necessary releases for private treatment records, she should be advised to obtain the records and submit them to VA. If any records are unavailable, the Veteran should be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning her claim, and she should be advised to submit any records in her possession. All such notification must be documented in the claims file. 3. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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. 2011). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs