Citation Nr: 1338295 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 08-05 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a right hip disorder. 2. Entitlement to service connection for a gynecological/pelvic disorder (claimed as residuals of a loop electrosurgical excision procedure (LEEP), to include scarring). 3. Entitlement to service connection for a toe disorder (claimed as blackening of the toenails). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from January 2003 to August 2006. These matters came to the Board of Veterans' Appeals (Board) from a May 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2010, the Board remanded the issues to afford the Veteran a Board hearing. In January 2011 correspondence, the Veteran withdrew her request for a hearing. In December 2011, the Board remanded the issues for additional development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In December 2011, the Board remanded the issues to afford the Veteran VA examinations regarding the nature and etiology of her claimed disabilities and to obtain an outstanding pelvic examination. In January 2012 VA correspondence to the Veteran, a request was made for her to complete a VA Form 4142 pertaining to the medical provider who conducted the pelvic examination, and any other private medical providers. The Veteran did not respond. The Veteran was also informed that she was going to be scheduled for VA examinations; however, the letter does not contain actual notice of the date of the examinations. Per a Fayetteville VA Medical Center (VAMC) print-out, it was indicated that the Veteran failed to appear for VA examinations scheduled on February 3, 2012. The notice letter to the Veteran, however, is not of record. An undated VA Report of Information reflects that VA attempted to call the Veteran at two telephone numbers pertaining to her failure to attend the VA examinations. They attempted to reach her at a listed 'Day' number and a listed 'Evening' number. The Board notes that the 'Day' number of XXX-XXX-X6XX is the one listed on the Veteran's June 2007 notice of disagreement; however, in subsequent submissions from the Veteran she identified her phone number as XXX-XXX-X5XX. Also, while the Veteran had listed an 'Evening' number on her October 2006 claim for compensation, this number has not been reported on subsequent submissions. The Veteran provided a phone number on her VA Form 9 (substantive appeal) which was not attempted. The Board finds that the duty to assist provisions have not been satisfied and remand is necessary to attempt to schedule the Veteran for VA examinations. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). The Board also notes, however, that while VA has a duty to assist the Veteran in the development of her claims, the Veteran has a duty to cooperate with VA. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The law also provides that a claimant for VA benefits has the responsibility to present and support the claim. 38 U.S.C.A. § 5107(a). Accordingly, the case is REMANDED for the following actions: 1. Afford the Veteran another opportunity to identify any VA or private treatment that she may have had for her claimed disorders since discharge from service, including the pelvic examination that was conducted in or around November 2006. After securing any necessary release forms, attempt to obtain and associate those identified VA or private treatment records with the claims file. If those identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be so notified so that she can make an attempt to obtain those records on her own behalf. 2. Schedule the Veteran for a VA podiatric examination in order to determine the nature and etiology of her claimed toe disorder (claimed as blackening of the pinky toenails). A copy of the notice letter must be associated with the claims folder. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner should respond to the following: (a) Please identify all diagnoses related to the toes, to include any fungal condition found. The examiner should specifically discuss the findings reported in the December 2006 examination in rendering a diagnosis. (b) For any toe disorder found, is it at least as likely as not (50 percent or greater probability) related to active service, to include use of black combat boots and socks, as well as the noted hematoma of the right great toe. All opinions must be accompanied by a clear rationale. If any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 3. Schedule the Veteran for a VA orthopedic examination with a physician in order to determine the nature and etiology of her claimed right hip disability. A copy of the notice letter must be associated with the claims folder. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests, including x-rays, deemed necessary should be conducted and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner should respond to the following: (a) Please identify all diagnoses associated with the right hip, to include any arthritic condition found. The examiner should specifically discuss the June 2006 physical examination board report, as well as the extensively documented right hip pain during military service. The examiner should also discuss any treatment, or lack thereof, for the claimed disorder following discharge from military service. (b) For any right hip disorder found, is it at least as likely as not (50 percent or greater probability) related to active service, to include the noted right hip strain in July 2004 and the suspected chronic right hip strain noted in the June 2006 physical examination. All opinions must be accompanied by a clear rationale. If any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. IF the prior gynecological/pelvic examination cannot be obtained, then schedule the Veteran for another such examination in order to determine the nature and etiology of the claimed residuals of LEEP. A copy of the notice letter must be associated with the claims folder. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner should respond to the following: (a) Please identify all gynecological and pelvic diagnoses, to include any scarring of the cervix. (b) For any gynecological or pelvic disorder found, is it at least as likely as not (50 percent or greater probability) related to active service, to include the LEEP surgery therein. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. IF the prior gynecological/pelvic examination is obtained but does not contain any opinion of etiology, then arrange for a VA examiner to review the file in lieu of an in-person physical examination. The examiner should opine whether any gynecological/pelvic disorder indicated in the examination report is at least as likely as not (50 percent or greater probability) related to active service, to include the LEEP surgery therein. 5. Following the above development, the RO/AMC should review the claims file and readjudicate the Veteran's claims of service connection for right hip, toe (claimed as blackening of the pinky toenails), and gynecological disorders. If any of the benefits sought on appeal remain denied, the Veteran and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. No action is required of the veteran until she is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of her claim. 38 C.F.R. § 3.655. The Veteran and her representative have the right to submit additional evidence and argument on the 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). _________________________________________________ ERIC S. LEBOFF 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).