Citation Nr: 1310050 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-38 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for endometriosis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran had active service from September 1957 to August 1961. This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas which, in pertinent part, denied service connection for endometriosis. In September 2011, the Veteran testified before the undersigned Veterans Law Judge via video conference. A transcript of the hearing is associated with the claims file. In October 2011, the Board remanded the claim for further development. In a rating decision of December 2012, the RO granted service connection for sarcoidosis. As the requested benefit has been granted, the issue is no longer before the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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, after a careful review of the claim file, the Board finds that an additional remand is needed prior to deciding the claim. The Board regrets the additional delay, however, additional development is needed to ensure due process. In the case of Stegall v. West, 11 Vet. App. 268 (1998), the United States Court of Appeals for Veterans Claims ("the Court") held that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. The Court also noted that its holdings in that case are precedent to be followed in all cases presently in remand status. Id. In the October 2011 Board remand, the Board noted that the RO had requested records from the North Metro Hospital where the Veteran reported Dr. C. worked. However, North Metro Hospital responded that they were unable to provide the requested records because they were unable to identify the patient with the information provided. The response indicated that additional information was needed to identify the correct patient, including a date of birth or social security number. It was noted that a review of the record did not reflect that the RO provided the additional information requested from North Metro Hospital and, thus, records from North Metro Hospital and Dr. C had not been not associated with the claims file. The Board, therefore, requested that the RO follow-up on its July 2010 request for records from the North Metro Hospital. The RO was to provide the Veteran's date of birth and social security number as well as any additional authorization and consent form deemed necessary. Finally, the RO was asked to document any negative responses. In a November 2011 letter, the RO requested that the Veteran complete VA Forms 21-4142 for each non VA provider that had treated her and from whom she wanted records to be obtained. The RO noted that the Veteran had previously stated she had been treated at the North Metro Hospital. The Veteran replied to the RO's letter, but did not include a VA Form 21-4142 for the North Metro Hospital. The RO did not conduct any additional development regarding obtaining treatment records from the North Metro Hospital. The Board finds that the RO did not comply with the October 2011 remand as it pertains to the request for records from the North Metro Hospital. Admittedly, the RO requested that the Veteran identify and provide VA Forms 21-4142 for all non VA providers who had treated her, and noted she had previously identified the North metro Hospital. However, the RO had been requested to follow-up with the previously submitted request for records. Accordingly, the RO was to make specific additional attempts to obtain the records from the North Metro Hospital, rather than make a general request to the Veteran for non-VA providers. There is nothing in the record to indicate that the RO made any specific attempts to clarify their request for records from the North Metro Hospital. Therefore, the Board finds that there has not been compliance with the orders of the October 2011 remand, and a new remand is needed to ensure compliance. Additionally, in regards to the Board's order for a VA examination regarding the nature and etiology of the claimed endometriosis, the Board finds that the VA medical opinion did not fully comply with the Board's request. In the October 2011 remand, the Board requested that the examiner "offer an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or more) that the Veteran currently has endometriosis and/or any other symptoms or disability that is the result of her military service, to include the D and C procedure performed in August 1961." The Veteran was afforded a VA examination in November 2011. In a September 2012 addendum, the examiner provided an opinion stating that he is "unable to state that [the hysterectomy] was done for menorrhagia since no notes are available." He noted that there was no pathology report at the time of the ruptured ectopic pregnancy and no pathology report from the 1971 hysterectomy. The examiner did not provide an opinion regarding the relationship, if any, between the D and C procedure in service and the post service hysterectomy, as had been requested by the Board in the October 2011 remand. Moreover, the Board finds that there are additional deficiencies with regards to the VA medical opinion provided. It appears that the examiner did not consider the Veteran's reports of continued heavy bleeding in service and since service. The Board notes that the Veteran is competent to report symptomatology. See Layno v. Brown, 6 Vet. App. 465 (1994). Further, while the RO requested that an opinion be provided wherein the examiner stated that a review of the claim file had been conducted, the September 2012 addendum does not specifically state that a review of the claim file was conducted. Finally, additional relevant records may be obtained as a result of this remand. Therefore, the Board finds that a new VA medical opinion is needed to properly decide the claim. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC should follow-up on its July 2010 request for records from the North Metro Hospital. The follow-up request should provide the Veteran's date of birth and social security number, as well an additional authorization and consent form, if deemed necessary. Any negative response to this request should be properly documented in the claims file. 2. After the foregoing development has been completed, the RO/AMC should obtain a VA medical opinion as to the nature and etiology of any current gynecological conditions. The examiner must provide an opinion as to whether any of the currently diagnosed gynecological conditions, to include the hysterectomy in 1991, is related to her military service, and specifically to include the D and C procedure performed therein. The claims file must be made available to the examiner for review and access to the Veteran's Virtual VA file must be provided. The examination report should reflect that a review of the paper and Virtual VA claim files was conducted. The examiner must specifically consider all lay statements including the Veteran's assertions of continued heavy bleeding since service. A rationale must be provided for each opinion offered. If the foregoing cannot be answered on a medical or scientific basis without invoking processes relating to guesswork or judgment based upon mere speculation, the examiner must clearly specify in the examination report why this is so. 3. Upon completion of the above-requested development, the RO should readjudicate the claim on appeal, taking into account any newly obtained evidence and conducting any additional development deemed necessary. If the service connection claims remain denied, the Veteran and her representative should be provided with a Supplemental Statement of the Case as to the issues remaining on appeal, and afforded a reasonable period of time within which to respond thereto. 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. 2012). _________________________________________________ C. TRUEBA 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).