Citation Nr: 1316643 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 09-30 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for infertility. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from December 1982 to March 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2012, the Board remanded the appeal for further development, and it now returns to the Board for appellate review. In January 2012, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge, sitting at the RO. A transcript of the hearing is associated with the claims file. In the May 2012 remand, the Board also remanded the issue of entitlement to service connection for a low back disorder. In a February 2013 rating decision, this claim was granted. Therefore, the Board no longer has jurisdiction over it. 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. REMAND The Veteran contends that she suffers from infertility as a result of active service. She testified at the January 2012 Board hearing that she had two miscarriages prior to joining the service. She also testified that she did not have her period during basic training from December 1982 to March 1983 and then had irregular, heavy, painful periods while she was in service. The Board observes that service treatment records reflect that the Veteran had a number of gynecological visits. In March 1984 she was found to have a normal pelvic examination. In a September 1985 record the Veteran's granulocytes and end cervical cells were negative for malignancy. She complained that she had not been able to get pregnant, although she and her husband had tried for 2 1/2 years. After service, the Veteran became pregnant, but it was an ectopic pregnancy and resulted in a ruptured fallopian tube. In June 1989 she was diagnosed with pelvic adhesive disease and underwent surgery for removal of her right fallopian tube and ovary. It was discovered that she had several uterine fibroids and in July 2002, she underwent a hysterectomy. In light of these facts, the Board remanded the appeal so that a VA examination could be scheduled. A VA examination was performed in July 2012. Unfortunately, the Board's review of the associated opinion reveals it to be inadequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In February 2013, the VA examiner opined that it is less likely than not that the Veteran's history of infertility is related to her military service. The rationale for this opinion was that she was pregnant twice before military service, and that she had a right ectopic pregnancy resulting in a right salpingooophorectomy, history of pelvic adhesions, blocked left fallopian tube, and uterine fibroids diagnosed after her military service. However, the Board notes that the Veteran testified to irregular and heavy menstrual periods and inability to conceive in service. She underwent surgical removal of her right fallopian tube and ovary and pelvic adhesions were diagnosed just over two years. In September 1993, she sought treatment for infertility, and a laparoscopy identified paraovarian and paratubal adhesions on the left fallopian tube and ovary. There were also peritoneal adhesions present, as well as a 5 cm uterine fibroid. In light of these circumstances, the Board finds that a clarification of the July 2012 VA examiner's opinion would be helpful. Accordingly, the case is REMANDED for the following action: 1. Request a clarification of the February 2013 opinion as to the etiology of the Veteran's infertility from the July 2012 examiner. The claims file should be made available for review, and the examination report should reflect that such review occurred, including Virtual VA records. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. The examiner should specifically consider the Veteran's reports of in-service menstrual issues and inability to conceive as she is competent to describe these problems, even if she did not specifically seek treatment in service. Additionally, the examiner should consider the post-service ectopic pregnancy, adhesions, and fibroid tumors. Once review of the record is complete, the examiner should respond to the following: a. Identify the actual cause(s) of the Veteran's infertility. b. Is it at least as likely as not that the cause(s) of the Veteran's fertility were present in service or are etiologically the result of a disease, incident, or injury in service? (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A rationale for any opinion advanced must be provided. The examiner should also state what sources were consulted in forming the opinion. If the examiner finds the Veteran's claims inconsistent or implausible when viewed in the context of the complaints, treatment, and diagnoses documented in and after service, the examiner must explain the reasons for that finding. If the provider of the February 2013 opinion is not available, the opinion should be requested from an equally qualified medical professional. 2. After completing the above actions, the AOJ should conduct any other development indicated by any response received as a consequence of the actions taken in the preceding paragraphs. 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). _________________________________________________ Thomas H. O'Shay Acting 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).