Citation Nr: 1237141 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 09-37 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for dysfunctional uterine bleeding. 2. Entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD), to include depression. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from January 1995 to May 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied, in pertinent part, the Veteran's claims of service connection for dysfunctional uterine bleeding and for an acquired psychiatric disability other than PTSD, to include depression. A Travel Board hearing was held at the RO in March 2012 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In an April 2011 rating decision, the RO proposed to reduce the disability rating assigned for the Veteran's service-connected sinusitis and tonsillitis from 30 percent to zero percent effective July 1, 2011. The Veteran requested an informal pre-determination hearing on this rating reduction claim in June 2011. This hearing was held at the RO in August 2011. See 38 C.F.R. § 3.105(e), (i) (2011). A review of the Veteran's Virtual VA claims file shows that, in a February 2012 rating decision issued after the Veteran's physical claims file was forwarded to the Board, the RO reduced the disability rating assigned for the Veteran's service-connected sinusitis and tonsillitis from 30 percent to zero percent effective July 1, 2011. This rating action reduced the Veteran's combined disability evaluation for compensation from 60 percent to 40 percent and constituted a final rating action which can be appealed to the Board. Id. The Veteran was notified properly of her appellate rights in the cover letter to the February 2012 rating decision. The Board notes in this regard that the Court has held that "the purpose behind [38 C.F.R. § 3.105(e)] is to enable Veterans to '(1) adjust to the diminished expectation and (2) submit evidence to contest the reduction.'" See Hamer v. Shinseki, 24 Vet. App. 58, 61-62 (2010); see also Hargrove v. Shinseki, 2009 WL 34930719 (Vet. App. Oct. 27, 2009) (finding that final rating action implementing rating reduction can be appealed to Board but Veteran failed to exhaust administrative remedies by seeking writ from Court before submitting notice of disagreement with rating decision implementing rating reduction). The Board finds that, as the purposes behind 38 C.F.R. § 3.105(e) have been met, and as the time has not expired for initiating an appeal of the final rating action which reduced the Veteran's disability compensation (in this case, the February 2012 rating decision), the rating reduction claim is not in appellate status. Unfortunately, as is explained below, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND Inasmuch as the Board sincerely regrets the additional delay of the adjudication of this matter, a remand is necessary before the Veteran's claims of service connection for dysfunctional uterine bleeding and for an acquired psychiatric disability other than PTSD, to include depression, can be adjudicated. The Veteran testified before the Board in March 2012 that she first experienced dysfunctional uterine bleeding during active service. She also testified that she had experienced this disability continuously since her service separation. See Board hearing transcript dated March 22, 2012, at pp. 2-3. She testified further that, although she had a history of pre-service child abuse, no psychiatric problems were noted at her enlistment physical examination. Id., at pp. 14. She also testified further that she first experienced depression during active service, including post-partum depression after the births of her first and second children. Id., at pp. 15. She finally testified that she had experienced situational depression as a child prior to her entry on to active service. Id., at pp. 18-19. The Board notes that a review of the Veteran's claims file confirms current diagnoses and treatment for a variety of gynecological problems, to include uterine bleeding, and for depression. To date, however, the Veteran has not been scheduled for VA examination to determine the nature and etiology of her dysfunctional uterine bleeding. Although the Veteran was seen on VA examination in October 2009 to determine the nature and etiology of her acquired psychiatric disability other than PTSD, to include depression, a review of this examination report shows that the VA examiner did not provide an opinion as to whether the Veteran's depression was caused or aggravated by active service. Nor did the October 2009 VA examiner provide an opinion as to whether the Veteran's acquired psychiatric disability other than PTSD, to include depression, may have existed prior to service and, if so, whether it was aggravated (or permanently worsened) by service. The Board notes that VA's duty to assist under the VCAA includes obtaining an examination or medical opinion when necessary. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Accordingly, the Board finds that, on remand, the Veteran should be scheduled for appropriate examinations to determine the nature and etiology of her dysfunctional uterine bleeding and her acquired psychiatric disability other than PTSD, to include depression. The RO/AMC also should attempt to obtain the Veteran's up-to-date VA and private treatment records. The Board notes in this regard that the most recent VA treatment records associated with the Veteran's claims file are dated only through August 2011. There also are additional VA treatment records located in the Veteran's Virtual VA claims file dated through February 2012. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and/or her service representative and ask her to identify all VA and non-VA clinicians who have treated her for dysfunctional uterine bleeding or for an acquired psychiatric disability other than PTSD, to include depression, since her separation from active service. Advise the Veteran not to resubmit any records already provided to VA. Obtain all VA treatment records which have not been obtained already. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already. A copy of any records obtained, to include a negative reply, should be included in the claims file. 2. Schedule the Veteran for appropriate in-person examination to determine the nature and etiology of her dysfunctional uterine bleeding. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of her claimed disorder, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that dysfunctional uterine bleeding, if diagnosed, is related to active service or any incident of service. To the extent possible, the examiner should distinguish between any symptomatology attributable to dysfunctional uterine bleeding, if diagnosed, and the Veteran's service-connected low grade squamous intraepithelial lesion (LGSIL) (claimed as cervical intraepithelial neuroplasia, uterine freezing, abnormal pap smears, and colposcopy). A complete rationale must be provided for any opinions expressed. The examiner is advised that service connection is in effect for low grade squamous intraepithelial lesion (LGSIL) (claimed as cervical intraepithelial neuroplasia, uterine freezing, abnormal pap smears, and colposcopy). The examiner also is advised that the Veteran contends that her current dysfunctional uterine bleeding is related to active service. 3. Schedule the Veteran for appropriate in-person examination to determine the nature and etiology of her acquired psychiatric disability other than PTSD, to include depression. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. The examiner should identify any acquired psychiatric disability other than PTSD, to include depression, currently experienced by the Veteran. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of her claimed disorder, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that an acquired psychiatric disability other than PTSD, to include depression, if diagnosed, is related to active service or any incident of service. The examiner also is asked to opine whether an acquired psychiatric disability other than PTSD, to include depression, existed prior to her entry on to active service in January 1995 and was aggravated (or permanently worsened) by service. A complete rationale must be provided for any opinions expressed. The examiner is advised that the Veteran contends that she incurred her current acquired psychiatric disability other than PTSD, to include depression, during active service. The examiner also is advised that the Veteran has reported experiencing situational depression as a child and child abuse prior to her entry on to active service in January 1995. 4. The Veteran should be given adequate notice of the requested examinations which includes advising her of the consequences of her failure to report to the examinations. If she fails to report to the examinations, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 5. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claims. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and her service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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. 2011). _________________________________________________ MARJORIE A. AUER 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) (2011).