Citation Nr: 1329376 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 09-39 104 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a back injury. 2. Entitlement to service connection for a right ankle injury. 3. Entitlement to service connection for a vaginal condition. 4. Entitlement to service connection for skin irritation and burning of the hands, knees, and feet. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1985 to July 1991. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran filed a notice of disagreement (NOD) with these determinations in February 2009, and timely perfected her appeal in October 2009. Additionally, in a September 2011 rating decision, the RO granted service connection for posttraumatic stress disorder (PTSD). This decision constitutes a full grant of benefits. Therefore, the claim of a service connection for PTSD is no longer on appeal. The Veteran was afforded a Travel Board hearing before the undersigned Veterans Law Judge in July 2013. A written transcript of that hearing was prepared and incorporated into the evidence of record. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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 Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran contends that her right ankle and back disabilities were a result of in-service injuries, which have continued to cause problems to this day. Additionally, the Veteran reported that she had vaginal pains in-service and was treated for that condition with birth control and injections. Lastly, the Veteran contends that she has skin irritation and burning of the hands, feet, and knees due to an undiagnosed illness from service in the Persian Gulf War. Service connection may be presumed for certain conditions, including unexplained rashes or other dermatological signs or symptoms, under 38 U.S.C.A. § 1117, based on service during the Persian Gulf War. The Secretary may pay compensation under this subchapter to a Persian Gulf veteran with a qualifying chronic disability that became manifest (A) during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War; or (B) to a degree of 10 percent or more during the presumptive period prescribed under subsection (b). For purposes of this subsection, the term "qualifying chronic disability" means a chronic disability resulting from any of the following (or any combination of any of the following): (A) An undiagnosed illness; (B) A medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms; (C) Any diagnosed illness that the Secretary determines in regulations prescribed under subsection (d) warrants a presumption of service connection. The Veteran's personnel records show that she served in South West Asia from December 1990 to April 1991. The Veteran's service treatment records document complaints and treatment for back and ankle pain, and vaginal irritation. A July 1989 service treatment record notes that the Veteran complained of right ankle pain after she twisted it inward playing volleyball. The physician diagnosed the Veteran with a first degree strain. The Veteran again complained of an ankle injury in September 1989. She complained of pain in the arch that radiated to the front of the foot. In a December 1990 record, the Veteran complained of acute lumbar pain. The Veteran was diagnosed with an acute lumbar strain. A February 1986 record noted that the Veteran's gynecological tests were negative for dysplastic and malignant cells, but trichomonads and inflammation were present. A May 1990 gynecological examination noted that the Veteran complained of metrorrhagia. An additional record notes that the Veteran complained of vaginal irritation and was diagnosed with yeast vaginitis. A March 1985 record documented menstrual cramps. The Veteran's May 1991 discharge examination was void of any noted back, right ankle, or gynecological diagnoses. VA treatment records show ongoing complaints of and treatment for back and right ankle pain. The Veteran also complained of skin rashes and was prescribed topical treatment. A May 2009 record noted a diagnosis of contact dermatitis. Additionally, private and VA treatment records show diagnoses of and treatment for fibroid uterus and ovarian cysts. The Veteran was afforded a VA joints examination in May 2009. The Veteran reported ongoing back and ankle pain since service. The examiner diagnosed the Veteran with chronic right ankle strain, chronic lumbar spine strain, and status post burn scar of the right hand with no residuals. The examiner concluded that the separation physical showed no complaint of history or abnormal findings on physical exam for problems with right ankle, lumbar spine, or burn on the right hand. Additionally, there was no documentation of problems with these areas since 1989. The examiner concluded that chronic right ankle and lumbar strain were less likely than not related to service. However, the examiner based his opinion on the fact that there were there was no documented medical evidence of the Veteran's ongoing medical condition. As noted in Buchanan v. Nicholson, the Board cannot determine that the Veteran's lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. 451 F.3d 1331 (2006). As such, the examination report is not adequate for rating purposes. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service); see also 38 C.F.R. § 4.2 (2012) (stating that if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes an examination, even if not required to do so, an adequate one must be produced). The Veteran was afforded a Gulf War VA examination in May 2010. The Veteran reported continued muscle pain and itching skin rashes. The examiner diagnosed the Veteran with chronic lumbosacral strain, chronic right ankle strain, and lichen simplex chronicus of right dorsal hand. However, the VA examiner did not render an opinion as to whether the Veteran's lumbosacral strain, chronic right ankle strain, and lichen simplex chronicus were related to the Veteran's active duty service. Additionally, the examiner did not state whether the Veteran's itching and burning of the hands, knees, and feet were symptoms related to an undiagnosed illness under the relevant regulations governing Persian Gulf War Veterans, of which the Veteran is a member. Therefore, a new VA examination is necessary to determine the Veteran's current back, right ankle, and skin conditions, and whether they were caused by, or are otherwise related to, the Veteran's time in service. In the examination report, the examiner must acknowledge and discuss the Veteran's report of an in-service incident and continuity of symptomatology. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Additionally, the VA has neither afforded the Veteran an examination nor solicited a medical opinion as to the etiology of the Veteran's gynecological conditions, to include fibroid uterus and ovarian cysts. Although the Veteran was treated for gynecological issues in-service and has been seeking treatment from the VA for this condition, it remains unclear to the Board whether the Veteran's gynecological conditions, to include fibroid uterus and ovarian cysts, had their onset in service or is related to any aspect of her military service. A medical opinion regarding an etiology of the Veteran's gynecological conditions, to include fibroid uterus and ovarian cysts, is therefore necessary to make a determination in this case. See 38 U.S.C.A. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). A remand is also necessary to obtain outstanding VA and private medical records. At the May 2009 VA examination, the Veteran reported that she was treated by a chiropractor for her back pain since she was discharged from service. Additionally, at the July 2013 hearing, the Veteran testified to ongoing treatment at the Beaufort Naval Hospital. However, it does not appear that these private treatment records have been obtained and associated with the claims file. Further, the evidence of record shows that the Veteran was receiving ongoing treatment at the VA through August 2011. The Veteran additionally testified that she was receiving ongoing treatment for her claimed conditions at the VAMC in Charleston. Because it appears that there may be outstanding VA and private medical records that may contain information pertinent to her claims, those records are relevant and should be obtained. 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1) The AMC should obtain any of the Veteran's outstanding VA treatment records dated from August 2011 to the present. Any attempts to obtain these records and responses received thereafter should be associated with the Veteran's claims file. The RO should contact the Veteran and request that she provide a completed release form (VA Form 21-4142) authorizing VA to request copies of any treatment records from any private medical providers, who have treated her for back, right ankle, skin, and vaginal conditions, to include records from Beaufort Naval Hospital and her chiropractor. After the Veteran has signed the appropriate releases, those records not already associated with the claims file, should be obtained and associated therewith. All attempts to procure any outstanding treatment records should be documented in the claims file. If the RO cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file and the Veteran and her representative should be notified of unsuccessful efforts in this regard, in order to allow her the opportunity to obtain and submit those records for VA review. 2) After the foregoing, schedule the Veteran for an orthopedic VA examination to determine whether any of her current back or right ankle conditions, to include chronic lumbosacral strain and chronic right ankle strain, are related to the Veteran's service. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All necessary studies should be performed, and all findings should be reported in detail. The examiner should address the following: A. Diagnose the Veteran's current back and right ankle conditions. B. For each diagnosis of the Veteran's back, provide an opinion as to whether it is at least as likely as not that the disorder is related to her active military service, to include an in-service lumbar strain. C. For each diagnosis of the Veteran's right ankle, provide an opinion as to whether it is at least as likely as not that the disorder is related to her active military service, to include an in-service right ankle strain. In rendering these opinions, the examiner must review the Veteran's service treatment records (July 1989, September 1989, and December 1990 records), VA treatment records, private treatment records, the May 2009 and May 2010 VA examination reports, the July 2013 hearing transcript, and any other relevant information. Furthermore, the examiner should discuss the Veteran's lay statements regarding the onset and duration of symptoms when discussing the offered opinion. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3) Additionally, schedule the Veteran for a skin VA examination to determine whether any of her current skin irritation and burning of the hands, knees, and feet, to include lichen simplex chronicus, are related to the Veteran's service. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All necessary studies should be performed, and all findings should be reported in detail. The examiner should address the following: A. Diagnose the Veteran's current skin conditions. The Veteran has reported itching and burning of her hands, feet, and knees. For each diagnosis, provide an opinion as to whether it is at least as likely as not that the disorder is related to her active military service. B. If the examiner examines the Veteran and determines that the Veteran's noted skin symptoms cannot be attributed to any established disease or disorder, the examiner should discuss whether the Veteran has a qualifying chronic disability or medically undefined chronic multisymptom illness as defined under 38 C.F.R. § 3.317. The examiner should then state whether is at least as likely as not that any disorders/qualifying chronic disability had its onset in or is otherwise related to the Veteran's active service. In rendering these opinions, the examiner must review the Veteran's service treatment records, VA treatment records, private treatment records, the May 2009 and May 2010 VA examination reports, the July 2013 hearing transcript, and any other relevant information. Furthermore, the examiner should discuss the Veteran's lay statements regarding the onset and duration of symptoms when discussing the offered opinion. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4) Additionally, schedule the Veteran for a gynecological VA examination to determine whether any of her current vaginal conditions, to include fibroid uterus and ovarian cysts, are related to the Veteran's service. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All necessary studies should be performed, and all findings should be reported in detail. The examiner should diagnose the Veteran's current gynecological conditions. For each diagnosis, provide an opinion as to whether it is at least as likely as not that the disorder is related to her active military service, to include in-service reports of vaginal irritation, yeast vaginitis, trichomonads, inflammation, and metrorrhagia. In rendering these opinions, the examiner must review the Veteran's service treatment records (March 1985, February 1986, May 1990 records), VA treatment records, private treatment records, the July 2013 hearing transcript, and any other relevant information. Furthermore, the examiner should discuss the Veteran's lay statements regarding the onset and duration of symptoms when discussing the offered opinion. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 5) Thereafter, the AMC/RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinions to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 6) Following the completion of the foregoing, and after undertaking any other development it deems necessary, the AMC should readjudicate the Veteran's claims. The AMC should then provide the Veteran and her representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. 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). These claims 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). _________________________________________________ WAYNE M. BRAEUER 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).