Citation Nr: 1302064	
Decision Date: 01/18/13    Archive Date: 01/23/13

DOCKET NO.  09-32 488	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUE

Entitlement to an increased rating for endometriosis/hysterectomy, currently rated as 30 percent disabling.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and Spouse


ATTORNEY FOR THE BOARD

A. Cryan, Counsel
INTRODUCTION

The Veteran served on active duty from August 2000 to June 2005.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas.  

The Board notes that the Veteran underwent a total hysterectomy during the pendency of the appeal and was granted a 100 percent rating for a period of time pursuant to 38 C.F.R. § 4.116, Diagnostic Code 7618 and she was also granted temporary total ratings based on surgical or other treatment necessitating convalescence for her service connected endometriosis on several occasions during the pendency of the appeal pursuant to 38 C.F.R. § 4.30.  A rating of 30 percent was in effect at all other times and most recently resumed effective October 1, 2009.  

The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C.


REMAND

A review of the claims file reveals that a remand is necessary before a decision on the merits of the claim can be reached.  

The Veteran was last afforded a VA examination to assess her service-connected endometriosis/hysterectomy in March 2010, almost three years ago.  VA's duty to assist includes the conduct of a thorough and comprehensive medical examination.  Robinette v. Brown, 8 Vet. App. 69 (1995). When available evidence is too old for an adequate rating of the Veteran's current condition, VA's duty to assist includes providing a new examination.  Weggenmann v. Brown, 5 Vet. App. 281 (1993).  The Veteran's last VA examination is stale.  The Veteran's service-connected disability may have worsened since the date of the last examination.  In order to properly adjudicate the increased rating claim, another examination should be scheduled.

Additionally, VA outpatient treatment reports dated through August 2010 are associated with the claims file and show treatment for symptoms related to her endometriosis and hysterectomy.  It is not clear whether any additional VA treatment records exist.  Because there may be outstanding VA medical records that contain information pertinent to the Veteran's claim, an attempt to obtain such records should be made.  38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following action:

1.  Obtain any VA treatment reports dated after August 2010. 

2.  Thereafter, schedule the Veteran for a VA examination of her service-connected endometriosis/hysterectomy.  The examiner must review the claims file and must note that review in the report.  All necessary tests should be conducted.  The examiner should identify and describe in detail all residuals attributable to the Veteran's service-endometriosis/hysterectomy.  The examiner should specifically state whether there are any lesions involving the bowel or bladder confirmed by laparoscopy, pelvic pain, heavy or irregular bleeding not controlled by treatment, or bowel or bladder symptoms.  

3.  Then, readjudicate the claim.  If action remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response.   Then, return the case 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



_________________________________________________
HARVEY P. ROBERTS
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) (2012).