Citation Nr: 1602042 Decision Date: 01/19/16 Archive Date: 01/27/16 DOCKET NO. 13-30 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial compensable rating for endometriosis. 2. Entitlement to service connection for a right knee condition. 3. Entitlement to service connection for a low back condition. 4. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1988 to September 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. A June 2012 rating decision granted entitlement to service connection for endometriosis and denied entitlement to service connection for a right knee condition and a low back condition. On September 18, 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ), a transcript of which has been associated with the claims file. Regarding the issue of entitlement to service connection for an acquired psychiatric disorder, the Veteran filed a timely Notice of Disagreement (NOD) to the June 2014 rating decision denying entitlement to service connection. Thereafter, in July 2015, the RO issued a Statement of the Case (SOC), and the Veteran filed a timely substantive appeal in September 2015, which included a request to appear at a Travel Board hearing. This issue has not been certified to the Board. The Board is cognizant that certification of issues on appeal by the AOJ is used for administrative purposes and neither confers nor deprives the Board of jurisdiction over appeals. See 38 C.F.R. § 19.35 (2015). The record, however, reflects that in a September 29, 2015 letter, the RO advised the Veteran that based upon her hearing request, she had been placed on the list of persons wanting to appear at a Travel Board hearing, and that she would be notified of the time and place of the hearing when a date becomes available. Thus, in light of the foregoing, the Board finds no further action is warranted on the part of the Board at this time. The issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a total disability rating based on individual unemployability (TDIU) will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). As the evidence suggests that the Veteran may be unemployable due to symptoms of her service-connected endometriosis, the issue of entitlement to a TDIU has been raised and is within the jurisdiction of the Board. Subsequent to certification of this case, the Veteran submitted additional evidence in support of her claim, to include lay statements and private treatment records. Under the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, this evidence is subject to initial review by the Board because the Veteran did not request in writing that the agency of original jurisdiction (AOJ) initially review such evidence. See 38 U.S.C.A. § 7105(e)(1), (2) (West 2014) (applicable in cases where substantive appeal filed on or after Feb. 2, 2013). The issue of entitlement to service connection for a headache disorder, as secondary to endometriosis, was raised by the Veteran at the September 2015 hearing. The issue of entitlement to service connection for fibromyalgia was raised by the Veteran in a June 2014 VA Form 21-0958 (Notice of Disagreement). Neither issue has been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015); see 79 Fed. Reg. 57,660 (Sept 24, 2014) (codified in 38 C.F.R. Parts 3, 19, and 20 (2015)). In a September 2015 statement, the Veteran requested a copy of her service treatment records under the provisions of the "Freedom of Information Act." The Veteran's Privacy Act Request was acknowledged by the Records Management Center (St. Louis, Missouri) in a November 2015 letter which advised the Veteran that her request had been assigned a case number and that her request would be processed in the order of receipt. There is no indication upon review of the claims folder that she has been provided with the requested records. All of the Veteran's claims are being remanded for additional development. Thus, this matter is REFERRED to the RO for appropriate action. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Therefore any future consideration of the Veteran's claim should take into account the existence of the electronic record. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the issues on appeal. Outstanding Records The record suggests that there may be relevant VA treatment records that are not associated with the claims file. Specifically, in the June 2012 rating decision, the RO indicated that it had electronically reviewed VA treatment records from the Birmingham VA Medical Center (VAMC) dated from June 23, 2003 to June 18, 2012. In the August 2013 SOC, the RO indicated that it had electronically reviewed VA treatment records from the Birmingham VAMC dated from June 24, 2003 to August 7, 2012 and from the Montgomery VAMC dated from May 24, 2012 to July 27, 2012. Additionally, the RO specifically referenced records from December 2010 showing a right medial meniscus tear and records from March 2010 showing degenerative changes in the low back. In the July 2014 supplemental statement of the case (SSOC), the RO indicated that it had electronically reviewed VA treatment records from the Birmingham VAMC dated from June 24, 2003 to May 22, 2014. The Board notes that the only VA treatment records associated with the claims file from the Montgomery VAMC are dated in July 2012 and that the only VA treatment records from the Birmingham VAMC are dated from June 2011 to November 2013. The Board is required to conduct a de novo review of the Veteran's claim which entails reviewing the same evidence considered by the RO. In this case, it appears that there may be relevant VA treatment records that are not associated with the claims file, but that were reviewed by the RO. Upon remand, the AOJ should obtain and associate with the claims file all outstanding VA treatment records, including those indicated above that were reviewed by the RO, as indicated in the June 2012 rating decision, the August 2013 SOC, and the July 2014 SSOC. Additionally, as the record indicates that the Veteran receives ongoing VA treatment for conditions on appeal, any current VA treatment records should be obtained on remand. 38 C.F.R. § 3.159(c)(2) (2014); Bell v. Derwinski, 2 Vet. App. 611 (1992) (observing that any VA treatment records that have been generated up to and including the date of the Board's decision, whether or not filed in the appellant's claims folder, are in the constructive possession of the Board and must be considered). Increased Rating for Endometriosis The Veteran contends that her service-connected endometriosis is more severe than reflected by her noncompensable disability rating. The Veteran's disability is evaluated pursuant to Diagnostic Code 7629, evaluating endometriosis. This diagnostic code provides a 10 percent rating for pelvic pain or heavy irregular bleeding requiring continuous treatment for control. A 30 percent rating is warranted for pelvic pain or heavy irregular bleeding not controlled by treatment. A 50 percent rating is warranted for lesions involving the bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms. 38 C.F.R. § 4.116, Diagnostic Code 7629. The Board finds that the evidence of record is insufficient to determine the severity of the Veteran's endometriosis. Specifically, in June 2012, the Veteran was afforded a VA Gynecological Conditions examination. The examiner diagnosed the Veteran with endometriosis and uterine fibroids. The examiner indicated that the Veteran required treatment with Motrin for endometriosis. The examiner also indicated that the Veteran had urinary incontinence/leakage that was due to a gynecologic condition; however, the examiner did not indicate the condition causing it. The examiner noted that the Veteran had been diagnosed with endometriosis and that the Veteran currently had pelvic pain as a sign or symptom of endometriosis. The examiner did not report that the Veteran currently had heavy or irregular bleeding, lesions involving bowel or bladder confirmed by laparoscopy, or bowel or bladder symptoms. However, VA and private treatment records, dated before and after the June 2012 VAX, document numerous complaints of increased urinary frequency, nocturia, and dysuria. Similarly, an August 2012 VA treatment record shows complaints of abnormal uterine bleeding leading to a uterine biopsy, and a November 2012 private treatment record documents an abnormal pap smear, irritation, and discharge. Moreover, although the examiner noted that a December 2001 laparoscopic examination revealed numerous small fibroids, dense adhesions to the bowel, and a dense foci of endometriosis, the examination report does not clearly address whether the Veteran's service-connected disability currently involves lesions involving the bowel or bladder confirmed by laparoscopy. Given the foregoing, the Board finds that the June 2012 examination report obtained in this case is not adequate, as it failed to provide medical information needed to address the rating criteria relevant to this case. Accordingly, the Board finds that a more thorough and contemporaneous examination is needed to fully and fairly evaluate the Veteran's claim of entitlement to an increased rating for endometriosis. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). Service Connection for a Low Back Condition The Veteran seeks service connection for a low back condition, which she asserts is due to an in-service injury that occurred when she fell off a RATT rig onto the cement. See September 2015 Hearing Transcript. She also testified that one of her VA treatment providers indicated that her current back condition could be related to her fall in service. The Veteran's service treatment records show that the Veteran complained of back pain in February 1990 following a fall from a truck the day before. An x-ray was within normal limits, and the Veteran was diagnosed with a back strain. Subsequent service treatment records are silent for further low back complaints or treatment. Available post-service treatment records do not document treatment for or diagnoses of a low back condition; however, as discussed above, there are treatment records missing from the claims file. In the August 2013 SOC, the RO indicated that VA treatment records show a complaint of low back pain in July 2004 and that a March 2010 x-ray showed moderate degenerative changes at L5-S1. Thus, there is evidence of a currently diagnosed back condition, evidence that the Veteran suffered an event, injury or disease in service, and evidence that the claimed disability may be associated with the in-service event, injury, or disease. Accordingly, a VA examination to determine the nature and etiology of the Veteran's low back condition is required on remand. 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). TDIU As indicated in the Introduction, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered "part and parcel" of the claim for benefits for the underlying disability. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this case, the Veteran submitted several statements indicating that she cannot work, in part, because of her endometriosis. See February 2015 Congressionals; July 2012 Notice of Disagreement; May 2012 Statement in Support of Claim. Additionally, during the September 2015 hearing, the Veteran testified that she could not maintain employment due to pain caused by her endometriosis. This evidence suggests that the Veteran may be unemployable as a result of her service-connected endometriosis. The Board thus finds that the evidence of record reasonably raises a claim for total disability rating for compensation based on unemployability due to the Veteran's service-connected endometriosis. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Accordingly, the RO should develop a claim for TDIU in accordance with Rice as indicated below. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with proper VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that informs her of the evidence and information necessary to establish entitlement to a TDIU. She should also be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 2. Obtain and associate with the Veteran's claims file all outstanding VA treatment records documenting treatment for the issues on appeal, particularly including records from the Birmingham and Montgomery VAMCs reviewed in the June 2012 rating decision, the August 2013 SOC, and the July 2014 SSOC, as well as any other VA treatment records dated from November 2013 to the present. If no such records are located, that fact should be documented in the claims file. The Veteran should also be afforded the opportunity to identify and submit any outstanding private treatment records relevant to her claim. 3. After all available records have been associated with the claims file, the Veteran should be scheduled for an appropriate VA examination so as to determine the nature and severity of her endometriosis. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following completion of the examination, the examiner should identify and describe in detail all residuals attributable to the Veteran's service-connected endometriosis. The examiner should specifically state whether there are any lesions involving the bowel or bladder confirmed by laparoscopy, pelvic pain, heavy or irregular bleeding, or bowel or bladder symptoms. In particular, the examiner should note all such symptoms and diagnoses in the Veteran's private and VA treatment records and indicate whether they are symptoms of the Veteran's endometriosis. Finally, the examiner should discuss the impact, if any, as well as a full description of the effects, that the Veteran's endometriosis has upon her ability to perform ordinary activities of daily living. The examiner should conduct any appropriate tests and studies in order to determine the nature and extent of the social and industrial impairment attributable to the service-connected endometriosis. The examiner must provide a rationale for each of the opinions that takes into account the Veteran's reports of her history and her current symptoms. The reasons and bases for each opinion are to be fully explained with a complete discussion of the evidence of record and sound medical principles, which may reasonably explain the medical guidance in the study of this case. 4. After all available records have been associated with the claims file, afford the Veteran an appropriate VA examination to determine the nature, onset, and likely etiology of any low back conditions. The entire claims file and a copy of this Remand must be made available to the examiner and the examiner shall indicate in the report that the claims file was reviewed. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. After examining the Veteran and reviewing the claims file, the examiner should render an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any currently diagnosed low back condition had its onset in service or is related to any in-service disease, event, or injury, to include the documented in-service low back injury in February 1990. In so opining, the examiner should comment on whether the pathology associated with the Veteran's current low back condition is consistent with the injuries described by the Veteran. The examiner's report must reflect consideration of the Veteran's entire documented medical history and assertions and all lay evidence, particularly the service treatment records documenting treatment for a low back injury in February 1990; VA and private treatment records documenting the Veteran's current back condition; and the lay statements of the Veteran regarding back pain in service and since discharge. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 5. Thereafter, the RO/AMC 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 they are 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 any other development deemed necessary, re-adjudicate the Veteran's claim of entitlement to service connection for a right knee condition and a low back condition and entitlement to an increased rating for endometriosis, including a claim of entitlement to a TDIU due to service-connected endometriosis, to include consideration of whether referral for consideration of a TDIU on an extraschedular basis is warranted. If any of the benefits sought on appeal remain denied, the Veteran and her representative should be provided with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). 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 2014). _________________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).