Citation Nr: 1322100 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 05-15 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a hysterectomy and the residuals thereof. 2. Entitlement to service connection for a disability manifested by urinary incontinence. REPRESENTATION The Veteran is represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from June 1977 to April 1980. These matters come before the Board of Veterans Appeals (Board) on appeal from a July 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama. During the pendency of this appeal, the Veteran's claims file was transferred to the Regional Office in Atlanta, Georgia (RO). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if further action is required. REMAND In September 2012, the Board remanded the above-captioned claims for additional development. Specifically, the Board directed the RO to request the Veteran's post-2007 treatment records from the Atlanta, Tuskegee, and Montgomery VA Medical Centers. These records were obtain and associated with the Veteran's Virtual VA claims file. Additionally, in the September 2012 remand, the Board directed the RO to provide the Veteran a VA gynecological examination in order to ascertain whether her post-service hysterectomy (and the residuals thereof) was due to her military service. In the September 2012 remand, the Board noted that the Veteran's service treatment records documented a variety of gynecological complaints, including bleeding, pustules, venereal disease, cramping, dysplasia, discharge, pain, a rash, stress incontinence, urinary tract infection, and a bladder infection. Moreover, the Board emphasized that the Veteran had provided competent evidence regarding her experiencing problems with observable symptoms of gynecological problems during her military service and until a 1998 hysterectomy. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997) (holding that, under the "law of the case" doctrine, appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case). In October 2012, the Veteran underwent a VA gynecological examination. During the examination, the examiner noted that the Veteran underwent a hysterectomy in 1998, but that "[t]he etiology of her hysterectomy is not known." Ultimately, the examiner opined that it was "less likely as not" that the Veteran's hysterectomy was incurred in or caused by her experience in the military. In support of this conclusion, the examiner provided the following rationale: When questioned about her condition[,] the Veteran spoke of sexually transmitted diseases she had in the military. This history would not cause her to have a hysterectomy in 1998, long after her discharge from the military. In rendering the above-cited opinion, the examiner's did not reference the Veteran's service treatment records or the competent evidence provided by the Veteran as to observable post-service symptoms. Further, the examiner's rationale was limited to the consideration of the Veteran's reported inservice experiences with sexually transmitted disease. This rationale is insufficient for purposes of determined the Veteran's entitlement to service connection for the hysterectomy of the residuals thereof. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (finding that the articulated reasoning enables the Board to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion). Additionally, the Veteran submitted a statement in April 2013 wherein she asserted that she underwent a complete radical hysterectomy in 2004 due to her military service. The evidence demonstrated that the Veteran underwent a trachelectomy (cervicectomy) in September 2004. The October 2012 VA examiner did not discuss this procedure in rendering the requested opinion. As such, the Board finds that the October 2012 VA examiner's opinion was predicated on an incomplete or incorrect factual premise and, thus, is not probative. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Based on the above, the Board finds that the October 2012 VA examination is not adequate for purposes of adjudicated the Veteran's claims. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Consequently, the Board finds that a remand is required in order to obtain an addendum to the October 2012 VA examination or to provide the Veteran with another examination. In October 2012, the Veteran was also provided a VA examination in order to ascertain the presence of a disability manifested by urinary incontinence and, if any, whether any was incurred in or due to her military service. The examiner ultimately opined, in part, that the Veteran's urinary incontinence was not documented until after the 1998 hysterectomy. This suggests that the Veteran's urinary incontinence was etiologically associated with the 1998 hysterectomy. Generally, all issues "inextricably intertwined" with the issue certified for appeal, are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). The issue of entitlement to service connection for a disability manifested by urinary incontinence is intertwined with the issue of entitlement to service connection for a hysterectomy and the residuals thereof because a decision on the latter claim may have an impact on the former claim. See 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439, 488 (1995)(en banc). Accordingly, the claim of entitlement to service connection for a disability manifested by urinary incontinence is remanded for contemporaneous adjudication. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the October 2012 VA examiner in order to obtain a supplemental opinion. The claims folder, her Virtual VA claims file, and a copy of this remand must be made available to the examiner for review in conjunction with the examination. The examiner must then specifically comment upon the gynecological treatment the Veteran received during her military service and her competent statements of observable symptoms until the time of her 1998 hysterectomy. After a review of the entire evidence of record, including the evidence pertaining to the September 2004 trachelectomy, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's hysterectomy and the residuals thereof were incurred in or due to the Veteran's military service. If and only if the examiner renders an opinion that etiologically relates the Veteran's hysterectomy to her military service, the examiner must also provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that a disability manifested by urinary incontinence is due to or aggravated by the Veteran's hysterectomy and the residuals. Aggravation is defined as a permanent worsening beyond the natural progression of the disability. In providing the opinion(s), the examiner is advised that the term at least as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. A complete rationale for any opinion expressed, to include citation to specific medical documents in the claims file and supporting clinical findings, must be included in the examination report. 2. If the October 2012 VA examiner is not available to provide the requested supplemental opinion, the RO should schedule the Veteran for another VA gynecological examination to determine whether the Veteran's hysterectomy of the residuals thereof were etiologically related to her military service. The claims folder, her Virtual VA claims file, and a copy of this remand must be made available to the examiner for review in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be performed. The examiner must review all the evidence of record, including the Veteran's service treatment records. The examiner must then specifically comment upon the gynecological treatment the Veteran received during her military service and her competent statement of observable symptoms until the time of her 1998 hysterectomy. After a review of the entire evidence of record, including the evidence pertaining to the September 2004 trachelectomy, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's hysterectomy and the residuals thereof were incurred in or due to the Veteran's military service. If and only if the examiner renders an opinion that etiologically relates the Veteran's hysterectomy to her military service, the examiner must also provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that a disability manifested by urinary incontinence is due to or aggravated by the Veteran's hysterectomy and the residuals. Aggravation is defined as a permanent worsening beyond the natural progression of the disability. In providing the opinion(s), the examiner is advised that the term at least as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. A complete rationale for any opinion expressed, to include citation to specific medical documents in the claims file and supporting clinical findings, must be included in the examination report. 3. The RO must notify the Veteran that it is her responsibility to report for any examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. Once the above actions have been completed, the RO must re-adjudicate the Veteran's claims on appeal, taking into consideration any newly acquired evidence. If the benefit sought remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).