Citation Nr: 1320038 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-33 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a gynecological disorder, claimed as polycystic ovary syndrome (PCOS). ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran served on active duty from March 2001 to March 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied multiple service connection claims, including PCOS. In a Notice of Disagreement (NOD) filed in April 2009, the Veteran limited her appeal to the PCOS claim. A review of the Veteran's service treatment records (STRs) reveals that she demonstrated ovary cysts on a pelvic ultrasound evaluation. A definitive diagnosis was not provided. As such, the Board has listed the issue on the title page to more broadly encompass a gynecological disorder however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). The Veteran failed to report for a Board hearing scheduled in May 2013. She did not timely request a rescheduling of the hearing or provide good cause for failing to appear. As such, her hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2012). A review of the Virtual VA electronic records storage system does not reveal any additional documents which are not currently associated with the paper claims folder. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND The Veteran seeks to establish her entitlement to service connection for a gynecological disorder claimed as PCOS. Her STRs reflect that an August 2003 pelvic ultrasound, to evaluate amenorrhea, was interpreted as showing multiple ovarian cysts. There was a recommendation to correlate the findings with a possible diagnosis of PCOS, but it does not appear that a definitive diagnosis was ever provided. She was previously given a diagnosis of cervicitis in April 2003. The Veteran reports that a diagnosis of PCOS has been confirmed by a private treatment provider, Dr. M.A., who has prescribed Omega-3 Plus, Vitamin A, Vitamin D and Glumetza. She provided a VA Form 21-4142 (Authorization and Consent to Release Information to VA) for this physician in September 2009, but the authorization expired before the RO had an opportunity to process the authorization. In March 2012, the RO requested another VA Form 21-4142 but the Veteran did not respond. The Veteran was afforded VA examination in March 2008. The examiner reviewed the claims folder and interviewed the Veteran but did not provide a conclusive diagnosis. Unfortunately, the Veteran was not physically examined in an attempt to confirm the diagnosis of PCOS. In light of the above, the Board finds that the March 2008 VA examination report is inadequate for adjudication purposes as it failed to conduct an examination to investigate the possible nature and etiology of the bilateral ovarian cysts noted in service. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that "once the Secretary undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.") Therefore, a remand is necessary in order to afford the Veteran a new VA examination so as to determine the current nature and etiology of any gynecological disorder found to be present. Additionally, while on remand, the agency of original jurisdiction (AOJ) should attempt once more to obtain any outstanding private medical records. The Veteran is hereby advised that she has a duty to cooperate in the development of her claim by responding to any AOJ requests for information, particularly concerning private medical records which the AOJ cannot obtain on her behalf without proper authorization. See Dusek v. Derwinski, 2 Vet. App. 519, 522 (1992) (quoting Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (claimant cannot wait passively for VA assistance in circumstances where claimant may or should have information in obtaining the putative evidence). Accordingly, the case is REMANDED for the following action: 1. Assist the Veteran in obtaining any pertinent VA and private medical records, including complete records from Dr. M.A. See VA Form 21-4142 received in September 2009. All reasonable attempts should be made to obtain such records. If any federal records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). For any private records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford her an opportunity to submit any copies in her possession. 2. Upon completion of the above, the Veteran must be afforded a proper VA examination to determine the nature and etiology of any currently manifested gynecological disorder found to be present. The claims file must be provided to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. All tests or studies necessary to make these determinations must be conducted, to include pelvic ultrasound if indicated. Following a review of the service and post-service medical records, the examiner must address the following: a) Identify all current gynecological disorders. Specifically indicate whether the Veteran has PCOS. b) For each gynecological disorder found, state whether it is at least as likely as not that such first manifested in service or is otherwise related to the Veteran's military service, to include cervicitis diagnosed in April 2003 and/or bilateral ovarian cysts found on pelvic ultrasound in August 2003? Any opinion provided must include an explanation of the basis for the opinion. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and her representative should be issued a supplemental statement of the case, with an appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ A. JAEGER 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).