Citation Nr: 1306031 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 08-35 052 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection a gynecological disorder, status post hysterectomy, claimed as endometriosis. 2. Entitlement to a disability rating in excess of 30 percent for migraine headaches prior to June 7, 2011. 3. Entitlement to a total disability rating for compensation based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active military service from August to December 1987, and from March 1993 to November 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico under cover letter from the VA RO in Winston-Salem, North Carolina. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The issues involving the claim of entitlement to a disability rating in excess of 30 percent for migraine headaches prior to June 7, 2011s and entitlement to a total disability rating for compensation based on individual unemployability (TDIU) are remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Service treatment records reveal that the Veteran had tubal ligation surgery in March 1995; fibroid uterus and omental adhesions were identified at the time of this surgery. 2. Service treatment records reveal that the Veteran sought treatment for complaints of abdominal pain and cramping subsequent to the tubal ligation surgery. 3. The Veteran had a hysterectomy in February 2007. 4. The Veteran reports a continuity of symptomatology, and private and VA treatment records confirm treatment for complaints, of abdominal and pelvic pain dating from service until her hysterectomy in 2007. 5. A February 2007 VA medical opinion relates the Veteran's need for hysterectomy to uterine fibroids which were first noted during active service. 6. A June 2011 VA medical opinion relates the Veteran's need for hysterectomy to chronic pelvic pain which did not respond to conservative treatment and was first documented in the service treatment records. CONCLUSION OF LAW A gynecological disorder, status post hysterectomy, was incurred in or due to active duty service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal herein. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. § 3.102 , 3.156(a), 3.159, 3.326 (2012). This is so because the Board is taking action favorable to the Veteran by granting service connection. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Generally, service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after separation, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder, the following must be shown: (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 current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). The Veteran's primary period of active duty service was from March 1993 to November 1996. She claims service connection for a gynecological disorder which was incurred during this period of service. She has asserted her claim as being for endometriosis. The Board has recharacterized the claim more broadly. While there are diagnoses of endometriosis of record, they appear to be the result of the Veteran self-reporting such a diagnosis and it then being carried forward in the medical records. Two VA physicians who conducted the 2007 and 2011 examinations conclude that there is no objective evidence of record to support such a diagnosis. What is not in question is that the Veteran had a gynecological disorder manifested by pelvic pain, which ultimately required hysterectomy in 2007. Service treatment records reveal that the Veteran had tubal ligation surgery in March 1995; fibroid uterus and omental adhesions were identified at the time of this surgery. Service treatment records document that the Veteran sought treatment for complaints of abdominal pain and cramping subsequent to the tubal ligation surgery. An undated service treatment record, reveals that the Veteran had complains of lower right abdominal quadrant pain and cramping. While undated, this record is subsequent to the March 1995 surgery because a history of that surgery was noted by the treating physician. November 1996 service treatment records reveal that the Veteran sought treatment for complaints of abnormal vaginal bleeding. The first record reveals that the Veteran reported right lower abdominal quadrant cramping and tenderness on examination was elicited by the physician. A record dated two days later also noted the Veteran's complaints of cramping pain, although tenderness on physical examination was not elicited at this time. The Veteran separated from military service later in November 1996. A May 1997 VA hospital treatment record reveals that the Veteran was evaluated for complaints of sharp right lower quadrant pain, which began four days earlier. She also reported complaints of more diffuse cramping pain, which had been present for several weeks. Prior histories of pelvic inflammatory disease along with the in-service tubal ligation surgery were noted. Ultrasound testing ultimately revealed the presence of a small right ovarian cyst. She was discharged with pain medication. A June 1997 VA outpatient treatment record reveals that the Veteran sought treatment for bilateral low abdominal quadrant pain, which began on the right side but ultimately radiated to left side and flank. Physical examination elicited tenderness to palpation of both lower abdominal quadrants. The previously identified right ovarian cyst was noted. The cause of the pain was not identified, but the physician indicated that pelvic inflammatory disease and endometriosis were unlikely. A subsequent, July 1997, treatment record noted complaints of continued pelvic pain, which had been present for over two months. Vaginal discharge was noted; while venereal disease was suspected, it was not shown on subsequent laboratory test results. VA treatment records dated through December 1997, reveal that the Veteran continued to have complaints of abdominal and pelvic pain. Records, such as an October 1997 report, further reveal that her complaints of pelvic pain were treated with the use of Depo-Provera which is an birth control medication taken by injection. Since the Veteran had previously had tubal ligation, such medication for the purposes of birth control was unnecessary. A January 2001 VA treatment record confirms that the Veteran had complaints of chronic pelvic pain which were being controlled by Depo-Provera injections. Conservative treatment of the Veteran's complaints of pelvic pain ultimately became less effective. VA records reveal that in February 2007, a hysterectomy was conducted to treat her complaints of abdominal/pelvic pain. In February 2007 a VA Compensation and Pension examination of the Veteran was conducted. The examiner noted the Veteran's history of tubal ligation surgery during service, along with the findings of uterine fibroids and omental adhesions at that time. The Veteran reported a diagnosis of endometriosis, but the examiner noted no actual objective evidence in the record, including the 1995 surgical report, to support such a diagnosis. Rather, the examiner indicated that the Veteran had uterine fibroids that had been present for many years and that Veteran had been medically treated with Depo-Provera and oral birth control medication in an attempt to control her symptoms of pain and bleeding. The examiner's medical opinion was that "it has been documented that she has had uterine fibroids for many years and this was the primary reason for her recent [hysterectomy] surgery." In November 2010, the Veteran testified at a hearing before the Board. She testified that she had symptoms of abdominal and pelvic pain dating from her tubal ligation surgery during service until her hysterectomy in 2007. She further testified that the 2007 hysterectomy had relieved most of her symptoms of abdominal/pelvic pain. In June 2011, another VA examination of the Veteran was conducted. The examiner reviewed the pertinent medical history including her history of tubal ligation surgery during service, subsequent complaints of pelvic pain, and her 2007 hysterectomy. The examiner's medical opinion was that the Veteran's "chronic pelvic pain not responding to conservative medical treatment CAUSED, RESULTED IN the performance of the total abdominal hysterectomy. Veteran's total abdominal hysterectomy was not due to uterine fibroids. Veteran's chronic pelvic pain treated while in service resulted in the total abdominal hysterectomy." The evidence establishes that the Veteran had uterine fibroids first diagnosed during tubal ligation surgery in service. She had complaints of chronic pelvic pain dating from that point until 2007, when she required a hysterectomy. Private and VA medical records, dated in the intervening period of time from her separation from service until 2007, support that she sought treatment for complaints of pelvic pain, and that these complaints were initially treated conservatively with medication. Ultimately, conservative treatment failed and she required total abdominal hysterectomy in 2007. The evidence reveals that this surgery successfully treated her complaints of chronic pelvic pain. The medical opinion in the 2007 VA examination indicates uterine fibroids as the cause of the Veteran requiring the hysterectomy in February 2007. Furthermore, this opinion notes the initial diagnosis of fibroids during service, and that the fibroids after service, requiring the hysterectomy, were long standing. When read most liberally, this opinion links the Veteran's post-service hysterectomy to the Veteran's uterine fibroids which had been present since they were first identified during service. The medical opinion in the 2011 VA examination indicates that the post-service hysterectomy was the result of the chronic pelvic pain first reported during service and being present ever since. While there are differences, both medical opinions link the Veteran's need for a total abdominal hysterectomy in February 2007 to service, either to the uterine fibroids first identified during service, or to the complaints of chronic pelvic pain which started during service and continued since. Uterine fibroids were diagnosed during service and uterine fibroids have been shown subsequent to service discharge. She has had complaints of and treatment for chronic pelvic pain dating from service until 2007. In February 2007 she had a total abdominal hysterectomy to treat her fibroids and/or complaints of pelvic pain. Two VA medical opinions link the Veteran's need for a post-service hysterectomy to service. Accordingly, service connection a gynecological disorder, status post hysterectomy, is warranted. ORDER Service connection a gynecological disorder, status post hysterectomy, is granted. REMAND A May 2012 rating decision granted an increased disability rating of 50 percent for the Veteran's service-connected migraine headaches, effective June 2011, the date of the most recent VA examination. A 50 percent disability rating is the highest rating assignable for migraine and contemplates headaches that are very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). As the 50 percent rating assigned in May 2012 was not been granted to the initial date of claim in July 2005, the issue of entitlement for a rating in excess of 30 percent for migraine headaches, prior to June 2011 is still on appeal. At the November 2010 hearing before the Board, the Veteran testified that she was in receipt of disability benefit from the Social Security Administration (SSA) based primarily on her migraine headaches. These records have not been obtained and have direct bearing on whether the service-connected migraine results in severe economic inadaptability. VA must obtain SSA decisions and records which have bearing on a veteran's claim. Waddell v. Brown, 5 Vet. App. 454 (1993); Clarkson v. Brown, 4 Vet. App. 565 (1993); Shoemaker v. Brown, 3 Vet. App. 519 (1993). The Veteran also testified at her hearing before the Board that she was unable to work because of her service-connected headaches. This was also noted in the 2011 VA examination report. Thus, the issue of entitlement to TDIU is raised by the record. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (holding that once a veteran submits evidence of medical disability and additionally submits evidence of unemployability, VA must consider total rating for compensation based upon individual unemployability). A request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service-connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Id. at 455. The issue of TDIU was remanded by the Board in January 2011. The AMC did not take action on this issue while handling the remand, but instead referred TDIU to the RO without taking action. As indicated above, the TDIU claim is part of the increased rating claims which were remanded, not an inferred or separate claim. The issue should have been adjudicated by the AMC and was not. Remand confers on the veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). AMC compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Id. at 271. Moreover, the grant of service connection in the decision above impacts the Veteran's claim for TDIU. Accordingly, remand for consideration of TDIU is necessary. Accordingly, the case is remanded for the following action: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is required. 1. The AMC must contact the Veteran to provide her the opportunity to submit any evidence and documentation related to the impact of her service-connected migraine headaches on her employment, including the termination of her employment and the reasons therefor. Such documentation may include employment records, sick leave records, statements from co-workers or her employer, and VA and non-VA treatment records, including SSA decisions. Based on her response, the AMC must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of her response, the AMC must obtain from SSA the records pertinent to the the Veteran's claim for Social Security disability benefits, as well as the medical records relied upon concerning that claim. All attempts to secure this evidence must be documented in the claims file by the AMC. If, after making reasonable efforts to obtain named records the AMC is unable to secure same, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) that she is ultimately responsible for providing the evidence. The Veteran and her representative must then be given an opportunity to respond. 2. After the above development has been completed, the Veteran's claims for a disability rating in excess of 30 percent for migraine headaches prior to June 7, 2011 and TDIU must be adjudicated. Moreover, the claim for TDIU must be adjudicated with consideration of the service-connected gynecological disorder, status post hysterectomy and of any disability rating assigned as a result of the grant of service connection in the decision above. If any claim on appeal remains denied, the Veteran and her representative must be provided a supplemental statement of the case. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until she receives further notice; however, she may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs