Citation Nr: 1414229 Decision Date: 04/02/14 Archive Date: 04/11/14 DOCKET NO. 11-02 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for residuals of a hysterectomy. 2. Entitlement to an initial compensable rating for status post residuals of an appendectomy. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran had active service from October 1979 to October 1983. These matters come before the Board of Veterans' Appeals (Board) from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In April 2013, the Veteran testified at a Travel Board hearing before the undersigned. A transcript of the hearing has been associated with the Veteran's file. During the hearing, the Veteran was granted a 30-day abeyance in order to submit additional evidence. No additional evidence has been received. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals the April 2013 Hearing testimony transcript; and VA treatment records dated from September 2010 to May 2012 that were considered in the May 2012 supplemental statement of the case. The remainder of the documents in the Virtual VA paperless claims file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any action on her part is required. REMAND Inasmuch as the Board regrets the delay of this appeal, a remand is required before the claims can be properly adjudicated. The Veteran is seeking entitlement to service connection for residuals of a hysterectomy. During the April 2013 hearing, the Veteran testified that her private gynecologist, Dr. Jackson in Greenville told her that her chronic abdominal/pelvic pain was scar tissue. She indicated that she did not know if the scar tissue was related to the in-service surgeries. See pages 4-7 of the Board hearing transcript. The Veteran did testify, however, that Dr. Jackson thought that the scar tissue was related to in-service surgeries. See page 12 of the Board hearing transcript. The Board notes, that the Veteran was afforded a 30-day abeyance in order for her to obtain the private treatment records from Dr. Jackson, however, she did not submit the records. As the Veteran has identified potentially pertinent private treatment records, such must be obtained and associated with the claims file. The Board notes that the Veteran's service connection claim has been denied on the basis that her pre-existing chronic gynecological disability was not aggravated beyond the natural progression of the disability. The Veteran's June 1979 service enlistment examination report documents that she underwent a vaginal hysterectomy in 1975. The Veteran reported that she was in good health and she voiced no complaints in relation to the pre-service surgery. In August 1980, the Veteran reported to sick call with complaints of abdominal pain. She subsequently underwent an oophorectomy in June 1981. When a preexisting condition is noted at service entrance, the presumption of soundness is not applicable and the claim is not for direct service incurrence, but for service-connected aggravation. Wagner v Principi, 370 F3d. 1089, 1096 (Fed. Cir. 2004). Under this particular circumstance, the provisions of 38 U.S.C.A. § 1153 are for application, and the burden falls on the Veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994); Wagner v Principi, 370 F3d. at 1096. Under 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306(a), aggravation will be established by an increase in disability during service, absent a specific finding that increase was due the natural progression of the disease. See also 38 C.F.R. § 3.306(a) (2013). This standard is further explained in 38 C.F.R. § 3.306(b), which provides that clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. In other words, if the presumption of aggravation arises, the burden shifts to the government to rebut the presumption of in-service aggravation by clear and unmistakable evidence. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Jensen v. Brown, 19 F.3d at 1417; Wagner v Principi, 370 F3d. at 1096. Aggravation of a pre-existing disorder not found on the service entrance examination can be rebutted by VA only if there is clear and unmistakable evidence of no increase in disability during service, or clear and unmistakable evidence that any increase was due to the natural progress of the disability. Wagner, 370 F.3d at 1096. The Veteran underwent a VA examination in May 2009. The examiner essentially provided an opinion in July 2009 that the Veteran's symptoms and treatment in service would be considered a normal progression of the gynecological disability. The Board notes that the burden of aggravation is on the Veteran as there is clear and unmistakable evidence that her gynecological disability pre-existed service; however once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board notes that the July 2009 opinion is inadequate for rating purposes. While the examiner found that the Veteran's in-service symptoms and treatment would be considered a normal progression of her original disability, the Board notes that the examiner did not address the facts that the Veteran's pre-service hysterectomy was at least 4 years prior to service enlistment; she did not complain of chronic pelvic pain upon enlistment; and her first abdominal/pelvic complaints were noted almost one year after enlistment, which subsequently led to her in-service oophorectomy in June 1981. As the opinion is not adequate, the Board finds that another examination with an appropriate opinion is warranted. The Veteran is also seeking entitlement to an initial compensable rating for service-connected residuals of an appendectomy scar. During the April 2013 hearing, the Veteran testified that her scar at times bothers her. She stated that the scar gets red, irritated, and scabby-especially if she does not apply lotion. The most recent VA examination for this disability was in August 2011, almost three years ago. Therefore, a new VA examination is required to assess the current level of severity of her appendectomy scar. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (where the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating). Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran of the necessity of obtaining treatment records from Dr. Jackson of Greenville and inform her that she may submit these records herself or authorize VA to obtain them on her behalf. After securing any necessary authorization from her, obtain records from Dr. Jackson of Greenville. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After all available treatment records have been associated with the claims file, schedule the Veteran for an appropriate VA examination to determine whether the pre-existing gynecological disability increased in severity during service. If aggravation is found, was it due to the natural progression of the condition, or was it aggravated beyond its natural progression during the Veteran's period of active duty which ended in October 1983. Note: The term "aggravation" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. In offering any opinion, the examiner must consider the service treatment records-which document no complaints of chronic pelvic pain upon service enlistment; the first complaints of abdominal pain in service was in August 1980, which ultimately resulted in a oophorectomy in June 1981; any post service treatment records, as well as the Veteran's lay statements regarding the incurrence of her claimed disorder and the continuity of symptomatology. The rationale for any opinion offered should be provided. If the examiner finds that he or she cannot provide a nexus opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. If any further testing or diagnostic studies are necessary prior to offering such opinions, they should be completed. 3. Schedule the Veteran for an in-person VA examination to determine the current severity of her residuals of an appendectomy scar. The examiner should identify and completely describe all current symptomatology. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. Ask the examiner to discuss all findings in terms of the 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. The pertinent rating criteria must be provided to the examiner. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 5. The Veteran is hereby notified that it is her responsibility to report for the examinations scheduled in connection with this REMAND and to cooperate in the development of her case. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. 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 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). _________________________________________________ MARJORIE A. AUER 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) (2013).