Citation Nr: 1329462 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 98-18 404 ) DATE ) ) Received from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for memory loss, to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117; or as secondary to a service-connected menstrual disorder, status post hysterectomy and trachelectomy. 2. Entitlement to service connection for headaches, to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117; or as secondary to a service-connected menstrual disorder, status post hysterectomy and trachelectomy. 3. Entitlement to service connection for joint pain, to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117; or as secondary to a service-connected menstrual disorder, status post hysterectomy and trachelectomy. 4. Entitlement to service connection for chronic fatigue, to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117; or as secondary to a service-connected menstrual disorder, status post hysterectomy and trachelectomy. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from March 1973 to March 1974, from October 1974 to August 1976, and from March 1990 to February 1992, to include service in the Southwest Asia theater of operations during the Persian Gulf War. She also had service in a reserve component of the military between 1976 and 1990. This appeal to the Board of Veterans' Appeals (Board) arose from a June 1998 rating decision in which the RO in Winston- Salem, North Carolina, inter alia, denied the Veteran's claims of entitlement to service connection for memory loss, headaches, joint pain, chronic fatigue, and menstrual problems. In August 1998, the Veteran submitted a notice of disagreement (NOD). A statement of the case (SOC) was issued in October 1998, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that month. During the pendency of the appeal, the Veteran's claims file was transferred to the jurisdiction of the RO in Phoenix, Arizona, which has certified the appeal to the Board. In February 2000, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge in Washington, DC. A transcript of that hearing is of record. During the hearing, the Veteran submitted additional medical evidence directly to the Board, with a waiver of initial RO consideration of the evidence. See 38 C.F.R. §§ 20.800, 20.1304 (2012). In April 2000, the Board remanded the claims on appeal to the RO for further action, to include additional development of the evidence. After completing the requested development, the RO continued to deny the claims (as reflected in a February 2001 supplemental SOC (SSOC)) and returned the matters to the Board for further appellate consideration. In May 2002, the Board denied the Veteran's claims, each to include as due to undiagnosed illness. In February 2010, the Veteran asserted, through her representative, that she had never received a copy of the Board's May 2002 decision. In March 2010, the Board acknowledged that although a copy of the Board's May 2002 decision had been sent to the Veteran at her address of record, it had been returned by the post office as undeliverable. As such, the Board mailed the Veteran another copy of its decision. Thereafter, the Veteran appealed the May 2002 Board decision to the United States Court of Appeals for Veterans Claims (Court). In February 2011, the Court granted a joint motion for remand filed by representatives for both parties, vacating the Board's decision, and remanding the claims to the Board for further proceedings consistent with the joint motion. In May 2011, the Board recharacterized the matters on appeal to include reference to "qualifying chronic disability," as set out in amendments to 38 U.S.C.A. § 1117 (West 2002 & Supp. 2013). The Board remanded the claims to the RO for further action, to include additional development of the evidence. After taking further action, in a May 2012 rating decision, the RO granted service connection for menstrual disorder, status post hysterectomy and trachelectomy (also claimed as premenstrual syndrome (PMS)), effective June 13, 1996; representing a full grant of the benefit sought with respect to the matter of service connection. The RO continued to deny the remaining claims on appeal (as reflected in an April 2012 SSOC) and returned these matters to the Board for further appellate consideration. In December 2012, in light of argument advanced by the Veteran's representative, the Board expanded the claims remaining on appeal to include service connection on a secondary basis (as reflected on the title page). The Board again remanded the claims to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After taking further action, the AMC continued to deny the claims (as reflected in a May 2013 SSOC) and returned these matters to the Board for further appellate consideration. The Board notes that the Veteran was originally represented by The American Legion with regard to the claims currently on appeal. In February 2011, the Veteran granted a power- of-attorney in favor of a private attorney. Then, in October 2011, she again granted a power-of-attorney in favor of The American Legion; that organization has submitted written argument on her behalf. The Board has recognized the change in representation. The Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA) file associated with the Veteran's claims. The electronic file contains additional evidence, as well as an August 2013 brief from the Veteran's representative, which the Board has reviewed. For the reasons expressed below, the matters remaining on appeal are again being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on her part, is required. As a final preliminary matter, the Board notes that, in his August 2013 brief, the Veteran's representative raised the issue of whether new and material evidence to reopen a claim for service connection for irritable bowel syndrome had been received. It does not appear that this matter has yet been addressed by the RO. As such, this matter is not properly before the Board, and is thus referred to the RO for appropriate action. REMAND Unfortunately, the Board finds that further RO action on the claims on appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. After the May 2013 SSOC was issued, and before the record on appeal was returned to the Board, the AMC associated with the claims file the report of an April 2013 neuropsychological evaluation. The report contains, among other things, statements attributed to the Veteran to the effect that she has "joint pain all over," and medical findings with respect to her reported sleeplessness and memory loss. As such, they are relevant to the matters on appeal. Despite the receipt of additional, relevant evidence, the AMC did not readjudicate the matters on appeal, or issue an SSOC addressing the additional evidence. Consequently, these matters must be remanded for RO consideration of the additionally-received evidence, in the first instance, and, if one or more of the claims on appeal remains denied, for issuance of an SSOC reflecting consideration of such evidence. 38 C.F.R. §§ 19.31, 19.37 (2012). However, prior to such consideration, the Board finds that further development of the matters on appeal is warranted. A remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Review of the claims file reveals that the development directed in the December 2012 remand was not fully completed. In the December 2012 remand, the Board noted that the Veteran's representative had raised, on the Veteran's behalf, a new theory of entitlement for service connection. More specifically, the Board observed that the representative had noted that the onset of the Veteran's complaints was at about the same time that her service- connected menstrual disorder began. The representative emphasized that the Veteran was service-connected for the removal of the uterus and both ovaries, including abnormal surgically-induced menopause; asserted that migraine headaches, joint pains, and mood swings were related to hormone imbalances and menopause; and submitted medical treatise evidence from the Mayo Clinic, www.womenshealth.gov, and the National Institutes of Health (NIH). The treatise evidence indicated, inter alia, that migraines could be caused by, among other things, stress, anxiety, lack of sleep, and/or hormone changes during the menstrual cycle; that, for some women, menopause could cause or worsen migraines; and that sleeping problems (insomnia) were common problems for women with surgical menopause, and that, in some women, menopause could cause symptoms such as headaches, forgetfulness, and aches and pains in joints. Because prior VA examinations and medical opinions did not address whether the Veteran had any current disability(ies) manifested by memory loss, headaches, joint pain, and/or chronic fatigue that was (were) caused or aggravated by her service-connected menstrual disability, status post hysterectomy and trachelectomy, the Board instructed the RO, inter alia, to return the claims files to two VA physicians (Drs. R.H. and W.L.) who had previously examined the Veteran, if available. The examiners were to clearly identify all relevant disabilities and, for each such disability, render an opinion, with a complete rationale, as to whether it was at least as likely as not (i.e., there was a 50 percent or greater probability) that the disability was caused or aggravated by the Veteran's service-connected menstrual disability. A review of the claims file reveals that the RO, via the AMC, arranged for the requested development. In a March 2013 addendum report, Dr. W.L. (a gynecologist) opined that there was less than a 50 percent probability that the Veteran's complaints of memory loss, headaches, joint pain, and chronic fatigue were related to her service-connected menstrual disability. In support of his opinion, Dr. W.L. noted that the Veteran had a history of vaginal bleeding; that she underwent a trachelectomy in January 2012; that she had physically recovered from the surgery, with no further bleeding and no pain from the surgery that would limit her from doing physical work; and that her reported symptoms were not medically related to her gynecological conditions. The Veteran was also interviewed by Dr. R.H. in March 2013. In his report, Dr. R.H. similarly opined that it was "less likely as not" that the Veteran's memory loss, headaches, joint pain, or fatigue was caused or aggravated by her service-connected menstrual disability. In support of his opinion, Dr. R.H. noted that the Veteran had recovered well from her gynecological surgery, with no post-surgical complications or long-term sequelae; and that the etiology of the Veteran's complaints were well-defined by other known medical conditions (as outlined in Dr. R.H.'s prior report in December 2011), none of which were related to the service-connected menstrual disability, for which she had undergone surgery with good results. Significantly, neither of the examiners made any mention of the aforementioned medical treatises, suggesting that migraines and insomnia, and symptoms such as forgetfulness and joint pain, can in some cases be caused or worsened by surgical menopause. Nor did they address whether the Veteran's service-connected menstrual disorder caused or aggravated any disabilities manifested by memory loss, headaches, joint pain, and/or chronic fatigue prior to the time of her trachelectomy, when her menstrual symptoms were active. See, e.g., McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Hence, the Veteran's claims file should be forwarded to Drs. W.L. and R.H. for addendum opinions. Only if one or both of those physicians is unavailable, or a new examination is deemed necessary, should a new examination should be scheduled. If another examination is scheduled, the Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of her claims for service connection (as the original claims will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to a scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to her by the pertinent VA medical facility. Prior to arranging further examination, to ensure that all due process requirements are met, and that the record before the examiners is complete, the RO should obtain and associate with the claims file all outstanding pertinent records. Updated records of the Veteran's treatment through the VA Medical Center (VAMC) in Phoenix, Arizona were last obtained and associated with the Veteran's electronic claims file on January 25, 2013. Hence, more recent medical records from this facility may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the above-noted facility all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran since January 25, 2013. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the matters on appeal. The RO's letter to the appellant should explain that she has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2013) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the appellant provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. As indicated, the RO's adjudication of these claims must include consideration of all pertinent evidence added to the claims file since the RO's last adjudication of the claims. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain from the Phoenix VAMC any outstanding, pertinent records of evaluation and/or treatment of the Veteran since January 25, 2013. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Furnish to the Veteran and her representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Clearly explain to the appellant that she has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, obtain all identified outstanding pertinent records of evaluation and/or treatment not currently of record, following the procedures set forth in 38 C.F.R. § 3.159 (2012). All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and her representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, forward the entire claims file, to include a complete copy of this REMAND, and copies of relevant records in the Virtual VA folder, to the two VA physicians (Drs. R.H. and W.L.) who previously provided opinions in this case in March 2013, if available. The physicians should provide addenda addressing each of the following questions, consistent with sound medical principles: a. Is it at least as likely as not (i.e., is there a 50 percent or greater probability) that the Veteran's headaches-diagnosed as migraines-were caused or aggravated (worsened beyond natural progression) by her service-connected menstrual disability, status post hysterectomy, at any point since June 1996 (when her claim for service connection was filed), to include during the years preceding her trachelectomy, when her menstrual symptoms were active? Please discuss the medical significance, if any, of the medical articles submitted by the Veteran's representative in August 2012, indicating that migraines can be related to hormone imbalances and menopause, and that menopause can cause or worsen migraines in some women. b. Is it at least as likely as not (i.e., is there a 50 percent or greater probability) that the Veteran's headaches-diagnosed as migraines-were caused or aggravated (worsened beyond natural progression) by her service-connected anxiety disorder? Please discuss the medical significance, if any, of the medical articles submitted by the Veteran's representative in August 2012, indicating that migraines can be caused by, among other things, stress, anxiety, and lack of sleep. c. Is it at least as likely as not (i.e., is there a 50 percent or greater probability) that the Veteran's joint pain-which has been medically attributed to injuries affecting her right wrist and right knee, and to scoliosis and arthritis of the thoracolumbar spine-was aggravated (worsened beyond natural progression) by her service-connected menstrual disability, status post hysterectomy, at any point since June 1996 (when her claim for service connection was filed), to include during the years preceding her trachelectomy, when her menstrual symptoms were active? Please discuss the medical significance, if any, of the medical articles submitted by the Veteran's representative in August 2012, indicating that, some women, menopause can cause aches and pains in the joints. In rendering the requested opinions, the physicians should specifically consider and discuss the Veteran's documented medical history and assertions. If either of the aforementioned VA physicians is no longer employed by VA or is otherwise unavailable, or another examination of the Veteran is deemed warranted, document that fact in the claims file, and arrange for the Veteran to undergo another VA examination, by one or more appropriate physician(s), at a VA medical facility, to obtain opinions responsive to the questions and comments noted above. The entire claims file, to include a complete copy of the REMAND, as well as copies of relevant records in the Virtual VA folder must be made available to the physician(s) designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. The examiner(s) should set forth all findings (if any), along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to a scheduled examination, obtain and associate with the claims file (a) copy(ies) of the notice(s) of the examination sent to her by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the matters on appeal in light of all pertinent evidence and legal authority. 8. If any benefit sought on appeal remains denied, furnish to the Veteran and her representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The appellant need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. 2013). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).