Citation Nr: 1336238	
Decision Date: 11/07/13    Archive Date: 11/13/13

DOCKET NO.  10-06 316	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES


1.  Entitlement to service connection for cysts of the uterus and ovaries, with subsequent hysterectomy.

2.  Entitlement to service connection for cholecystectomy (gallbladder removal) claimed as secondary to hysterectomy.

3.  Entitlement to service connection for irritable bowel syndrome (IBS) claimed as secondary to hysterectomy.

4.  Entitlement to service connection for gastroesophageal reflux disease (GERD) claimed as secondary to hysterectomy.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

C. Eckart, Counsel


INTRODUCTION

The Veteran served on active duty from January 1991 to April 1991, and had additional service in the Air National Guard.  

This matter comes before the Board from a March 2008 rating from the Department of Veterans Affairs Regional Office (RO) in Cleveland, Ohio which denied the issues on appeal.

The Veteran testified before the undersigned Veterans Law Judge at a hearing held in June 2013.  A copy of the transcript is associated with the electronic folder.  

The issues of entitlement to service connection for GERD and IBS are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  During the June 2013 hearing, prior to the promulgation of a decision in the appeal, the Veteran and her representative indicated a desire to withdraw from appeal the issue of service connection for cysts of the uterus and ovaries, with subsequent hysterectomy.

2.  During the June 2013 hearing, prior to the promulgation of a decision in the appeal, the Veteran and her representative indicated a desire to withdraw from appeal the issue of service connection for cholecystectomy.


CONCLUSIONS OF LAW

The criteria for withdrawal of the appeal by the Veteran as to the issue of service connection for cysts of the uterus and ovaries, with subsequent hysterectomy have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013).

The criteria for withdrawal of the appeal by the Veteran as to the issue of service connection for cholecystectomy have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Withdrawal of Appeals 

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012).  Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204.  In the present case, during the June 2013 hearing, the Veteran withdrew her appeal as to the issues of service connection for cysts of the uterus and ovaries, with subsequent hysterectomy and for cholecystectomy.  As such, there remain no allegations of errors of fact or law for appellate consideration for these issues. 

Accordingly, the Board does not have jurisdiction to review the appeal of the issues of service connection for cysts of the uterus and ovaries, with subsequent hysterectomy and for cholecystectomy, and it is dismissed.


ORDER

The appeal as to the issue of service connection for cysts of the uterus and ovaries, with subsequent hysterectomy is dismissed.

The appeal as to the issue of service connection for cholecystectomy is dismissed.


REMAND

Unfortunately, a remand is required in this case as to the issues of entitlement to GERD and IBS.  The Veteran has indicated that complete service treatment records are not currently of record.  She specifically alleges that records from Incirlik Air Base in Turkey were not obtained that would show treatment in 1998 for a large ovarian cyst, which she alleged later resulted in her current GI complaints.  

While there are service treatment records associated with the claims folder, review of the evidence reveals no records from Incirlik Air Base documenting such treatment and it does not appear efforts to obtain such records were completely exhausted.  The Veterans service department records were apparently reported as retired to the National Personnel Records Center (NPRC) in August 2007.  A January 2008 response from the VA records management center (RMC) indicated no additional service treatment records were located.  A negative response has not yet been recorded from the NPRC as to these specific records and the Veteran in her March 2009 NOD has suggested possible alternate means to obtain these records, either directly from Hodia Village Clinic at Incirlik Air Base or the Air Reserve Personnel Center in Denver, Colorado.   

Additionally the available service treatment records are shown to document repeated instances of gastrointestinal problems including nausea, vomiting and diarrhea, including such episodes in the line of duty (LOD).  Of note records from July 1995 indicated that the Veteran developed symptoms of nausea, vomiting and diarrhea during war games, with LOD determination indicating such symptoms were the result of injury-specifically heat exhaustion.  Given the manifestations of gastrointestinal symptoms during active duty (to include active duty for training) including due to the injury of heat exhaustion in one instance, a VA examination should be scheduled to address whether the Veteran's claimed disorders of GERD and IBS are directly related to service, regardless of the outcome of the attempts to obtain further service treatment records to support the secondary claim.

VAX GERD and IBS to include consideration of the STRS during active duty including heat exhaustion injury.  

Accordingly, the case is REMANDED for the following action:

1.  The AOJ should take appropriate steps to secure all complete service treatment records or alternative records for the Veteran through official channels including the NPRC, the Air Force HQ Air Reserve Personnel Center at Denver, Colorado, or any other appropriate source, and including the appellant, as per the procedures set forth in VA Adjudication Procedure Manual, Manual M21- 1, Part III, paragraph 4.25(c) and 4.29, if so warranted.  Any and all records obtained should be associated with the claims file, (specifically the complete records of treatment from Hodia Village Clinic at Incirlik Air Base, Turkey for an apparent ovarian cyst during her active service between September 1998 and January 1999 in Turkey.)  If there are no records, the AOJ should so specifically find and the documentation used in making that determination should be set forth in the claims file.

2.  Thereafter following completion of the above, the AOJ should afford the Veteran a VA gastrointestinal disorders examination.  The claims file must be provided to the examiner for review prior and pursuant to conduction and completion of the examination.  All indicated studies should be performed.  The examiner must determine the nature, severity, and etiology of any gastrointestinal disorder(s) present, including the claimed GERD and IBS.  

(a)  The examiner should determine whether the Veteran has a current gastrointestinal disorder, to include GERD and/or IBS, and if so, the examiner should opine as to whether any such disorder(s) is/are related to service, to include any incident shown therein during active duty for training (to include incident of heat exhaustion deemed an injury in the LOD report of July 1995), or if preexisting any active period of service, was/were aggravated beyond natural progression thereby.  

(b)  If additional evidence is obtained showing treatment for an ovarian cyst in service, the examiner should also provide an opinion as to whether it is at least as likely as not (i.e., a 50/50 probability or greater) that current gastrointestinal disorder, to include GERD and/or IBS was caused by the ovarian cyst.  If current gastrointestinal disorder, to include GERD and/or IBS is not caused by an ovarian cyst, the examiner should provide an opinion as to whether is it at least as likely as not (i.e., a 50/50 probability or greater) that current gastrointestinal disorder, to include GERD and/or IBS was aggravated (permanently worsened beyond normal progression) by an ovarian cyst.  If the examiner finds current gastrointestinal disorder, to include GERD and/or IBS is aggravated by an ovarian cyst, the examiner should provide an opinion as to the baseline level of severity of the tinnitus and/or headaches with light sensitivity prior to the aggravation.  

The report of the examination should include a complete rationale for all opinions. 

3.  Then, after taking any further development deemed appropriate, readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case. It must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and discussion of all pertinent regulations.  An appropriate period of time should be allowed for response.

The appellant has the right to submit additional evidence and argument on the matter or 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).




______________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs