Citation Nr: 1317672 Decision Date: 05/30/13 Archive Date: 06/06/13 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 disorder, 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 Donna D. Ebaugh, Associate 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. Next, a review of the Veteran's Virtual VA file reveals that pertinent VA outpatient treatment records are found in the electronic file that are not located in the paper claims file. Therefore, any further consideration of this appeal should take into account the Virtual VA file. These claims were previously remanded by the Board in October 2012. Unfortunately, the claims are not yet ready for further disposition and are 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, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). Regarding the claim of entitlement to service connection for dysfunctional uterine bleeding, the Veteran underwent a VA examination in November 2012 pursuant to the October 2012 Remand. However, clarification of the examiner's report is necessary. Specifically, the examiner determined that the Veteran's dysfunctional uterine bleeding was due to endometrial hyperplasia and anovulatory bleeding, neither of which were due to service. The examiner explained that the endometrial hyperplasia was due to excessive weight and diabetes but the examiner did not explain how he reached the conclusion that the anovulatory bleeding was not related to service. The Board emphasizes that the Veteran is competent to report that her excessive bleeding and irregular menses began during service, following the cryosurgery in May 1995. Further, a November 1995 service treatment record indicates complaints of pelvic pain. The examiner should not discount the possibility that the symptoms began in service merely because the Veteran may not have sought treatment every time she experienced irregular menses or excessive bleeding. As a complete rationale for the opinion was not provided, the opinion is incomplete and an addendum opinion is required. Additionally, the Board notes that the examiner indicated that it was likely that the Veteran's irregular menses began prior to service but did not make a formal finding regarding whether there was clear and unmistakable evidence of preexisting dysfunctional uterine bleeding. The examiner based the assumption that the irregular menses began before service on the Veteran's service entrance report of medical history in which, at age 18, she reported that she had an irregular menstrual pattern on occasion but that her menses were regular at present (at the time of service entry). The Board notes that a January 1995 service treatment record reveals that the Veteran reported a cycle of regular duration and that she did not have spotting in between periods. Additionally, a May 1998 service treatment record indicates that the Veteran reported a regular cycle every 28 days for a consistent number of days each time. The examiner's discussion of a possible preexisting menstrual disorder is uninformative. On Remand, the examiner is asked to clarify whether there is clear and unmistakable evidence of preexisting dysfunctional uterine bleeding. Such was not noted on the service entrance examination report and therefore the presumption of soundness attaches. 38 U.S.C.A. §§ 1111, 1137 (West 2002). The presumption of soundness may only be rebutted by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304(b) (2012). Based on the foregoing, the Board finds that the November 2012 VA gynecological examination report is incomplete and that an addendum opinion is required. See Stegall v. West, 11 Vet. App. 268 (1998) (remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms). Regarding the claim of entitlement to service connection for an acquired psychiatric disorder, clarification is required from the November 2012 VA psychiatric examiner. The Veteran was provided with the VA examination in November 2012 in accordance with the October 2012 Remand. The examiner determined that the Veteran had an anxiety disorder not otherwise specified that was related to her reports of being sexually abused as a child. The examiner noted that the Veteran did not have any current depressive symptoms at the time of the November 2012 VA examination; however, the examiner did not provide a nexus opinion for a depressive disorder not otherwise specified, previously diagnosed as recently as April 2010. Under McClain v. Nicholson, 21 Vet. App. 319 (2007), the current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim. As the April 2010 diagnosis was rendered during the pendency of the claim, a nexus opinion is required. Moreover, the November 2012 VA examiner noted that there was no indication of depression in service, including post-partum depression following the birth of the Veteran's child. However, a review of the record reveals a January 1998 service treatment record that noted that the Veteran should return to the hospital if her post-partum depression did not continue to improve, thus indicating that she had post-partum depression. As the examiner's opinion may have been based on inaccurate facts and did not address a nexus opinion for a depressive disorder not otherwise specified diagnosed during the pendency of the appeal, an addendum report is required to address these deficiencies. See Stegall, 11 Vet. App. 268 (1998). Additionally, the Veteran alternatively argues that if her acquired psychiatric disorder is not directly related to service, it is caused or aggravated by her service-connected disabilities. VA outpatient treatment records indicate that in October 2009, she reported that she had continuity of depressive symptoms since service and that she worried about her service-connected conditions all of the time. Thus, on Remand, if the examiner finds it the Veteran's acquired psychiatric disorder(s) is not directly related to service, the examiner should offer an opinion regarding secondary service connection. Lastly, the November 2012 VA gynecological examiner noted that the Veteran indicated that she was going to fax additional records to the examiner, including record related to a follow up with her primary care provider, but did not do so. As the claim is already being remanded, the Veteran should be given another opportunity to submit any relevant records related to her claims and/or identify any private providers that from whom she would like VA to request records on her behalf. As the record indicates that she seeks VA treatment for both of the claims on appeal, and she reported to the November 2012 examiner that she intended to seek additional treatment from her primary care physician, any relevant, outstanding VA outpatient treatment records regarding the claims on appeal, should be obtained. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that she may submit additional evidence, including any relevant treatment records, in support of her claim. Also notify the Veteran that she may identify any private physicians from whom she would like VA to request records. If she responds and identifies care providers and provides the appropriate authorization and consent, seek the records. Any negative response should be noted. 2. Obtain any outstanding VA outpatient treatment records from the VA North Texas Healthcare system, as well as the VA outpatient clinic in Ft. Worth, Texas, regarding gynecological disorders and/or psychiatric disorders for the period from December 2012 to the present. Any negative response should be noted. 3. Following receipt of the above records, return the claims file to the November 2012 VA gynecological examiner for an addendum opinion. The entire claims file must be made available to the VA examiner. Pertinent documents should be reviewed. If the November 2012 VA examiner is not available, then another VA examiner should offer an addendum opinion. The Board leaves it to the examiner's discretion as to whether another examination is necessary. The examiner is asked to address the following: (a) Please provide a basis for the November 2012 opinion that the Veteran's anovulatory bleeding is not related to service. The examiner must consider that the Veteran is competent to report that her excessive bleeding and irregular menses began in service and that her symptoms have continued since service. (b) If the examiner maintains that the Veteran's irregular menses began prior to service, the examiner is asked to opine whether there is clear and unmistakable evidence that the Veteran's dysfunctional uterine bleeding preexisted service, and identify such evidence. The medical basis for such an opinion must be provided. (c) If there is clear and unmistakable evidence that the disorder pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disorder did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. If there was an increase in the severity of the Veteran's disorder, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. The examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusion(s). 4. Following receipt of the above records, return the claims file to the November 2012 VA psychiatric examiner for an addendum opinion. The entire claims file must be made available to the VA examiner. Pertinent documents should be reviewed. If the November 2012 VA examiner is not available, then another VA examiner should offer an addendum opinion. The Board leaves it to the examiner's discretion as to whether another examination is necessary. The examiner is asked to address the following: (a) Please provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's acquired psychiatric disorder(s), including depression diagnosed as recently as April 2010, is related to service, even if the depressive symptoms resolved prior to the November 2012 VA examination. The examiner must consider the Veteran's competent statements of continuity of symptomatology since service. (b) If the Veteran's acquired psychiatric disorder(s) is not related to service, opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's acquired psychiatric disorder was caused or aggravated by the Veteran's service-connected disabilities. If the examiner finds aggravation is present, the examiner should identify the baseline level of severity of the current acquired psychiatric disability prior to the onset of aggravation. If some of the increase in severity of the acquired psychiatric disability is due to natural progress, the examiner should identify the degree of increase in severity due to natural progression. If the examiner determines that an additional examination of the Veteran is necessary to provide a reliable opinion as to aggravation, such examination should be scheduled. However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. A complete rationale should be given for all opinions and conclusions rendered. If the examiner is unable to offer an opinion without resort to mere speculation, the examiner is asked to state the same and explain why an opinion would require speculation. 5. Readjudicate the claims to include consideration of all evidence added to the record since the February 2013 Supplemental Statement of the Case (SSOC). If the claims remain denied, provide another SSOC to the Appellant and his representative. Return the issues to the Board for further appellate review after the Veteran and his representative have been afforded an adequate opportunity to respond to the SSOC. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ 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) (2012).