Citation Nr: 1609244 Decision Date: 03/08/16 Archive Date: 03/15/16 DOCKET NO. 09-38 733 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for an esophageal disability. 3. Entitlement to service connection for residuals of a problematic pregnancy. REPRESENTATION The Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and her husband ATTORNEY FOR THE BOARD Russell Veldenz, Counsel INTRODUCTION The Veteran served on active duty from June 1970 to March 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The RO in Sioux Falls, South Dakota, now has jurisdiction of the file. The Veteran and her husband testified in December 2009 before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. In July 2011 and July 2014, the Board remanded the case to the RO for additional development. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the Veteran, as a lay person, filed her claim as service connection for depression, anxiety, stress, and residuals of psychotherapy. Multiple medical diagnoses that differ from the claimed condition do not necessarily represent a separate claim, and what constitutes a claim cannot be limited by a lay Veteran's assertion of his condition in his application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). Because the evidence indicates that the Veteran may have different conditions or diagnoses for depression, anxiety, stress, and residuals of psychotherapy, the Board has therefore stated the issues as set forth on the first page of this decision. The issues of entitlement to service connection for an acquired psychiatric disorder, and for an esophageal disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT Resolving all doubt in the Veteran's favor, the most probative evidence of record demonstrates that residuals of a problematic pregnancy, menstrual and abnormal bleeding and subsequent infertility problems, were incurred during active service. CONCLUSION OF LAW The criteria for service connection for residuals of a problematic pregnancy, menstrual and abnormal bleeding and subsequent infertility problems, are met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented, in part, at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the issue of residuals of a problematic pregnancy is resolved in the Veteran's favor, the only matter disposed of in this decision, further discussion here of compliance with the VCAA with regard to the claims is not necessary. Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Facts and Analysis In February 1972, the Veteran had a therapeutic abortion. A week later, she returned with vaginal bleeding and abdominal pain. She underwent a dilatation and curettage (D & C) for retained products of conception. She did well post-operatively and about two weeks later, her pelvic examination was within normal limits. The Veteran testified that since that time, she has had bleeding problems resulting in several D & C procedures. She has been told by a physician that she could not have children. In September 2004, it was noted that the Veteran suffered from periodic heavy bleeding every other week. Sometimes, this was accompanied by cramps. An ultrasound disclosed a small heterogenous mass on the anterior wall at the base of the uterus fundus and two cysts in the left adnexa. In February 2005, the Veteran complained of bleeding after a D & C in December 2004. In May 2006, the Veteran's caregivers at VAMC noted she had a history of dysfunctional/peri-menopausal bleeding. In a November 2011 VA examination, the examiner noted the Veteran had therapeutic abortion and a subsequent D&C for increased bleeding. He further noted the Veteran's history of off and on bleeding with at least one additional D & C in 2004 and an endometrial ablation in September 2005, although the Veteran stated she has had several other D & Cs prior to that time. In his opinion it was at least as likely as not that the Veteran's menstrual and abnormal bleeding and subsequent infertility problems were related to the D&C for her therapeutic abortion and subsequent D & Cs. Clearly, the Veteran had a therapeutic abortion and D & C while in service. After service, she had abnormal bleeding and testified she could not have children. The VA examiner in November 20112011 determined that the Veteran's menstrual and abnormal bleeding and subsequent infertility problems are attributable to the surgical procedures in service. The Board finds November 2011 VA examiner's opinions as to the diagnosis and cause of the menstrual and abnormal bleeding and subsequent infertility problems to be highly probative as they present the medical opinions of a competent expert, informed by review of the Veteran's medical history, and with a rationale. The Veteran since service has had menstrual and abnormal bleeding, several D & C and other surgical procedures, and subsequent infertility problems. The VA examiner took into account the Veteran's evidence as to the onset or cause of her current disorders, menstrual and abnormal bleeding and subsequent infertility problems. In the examiner's opinion, the etiology of the Veteran's menstrual and abnormal bleeding and subsequent infertility problems are the therapeutic abortion and D &C a few weeks later, which occurred in service. He reviewed all of the medical evidence of record, including the in-patient service treatment records, and he took into account the most pertinent evidence, that is, the evidence of the procedures in service, and the Veteran's account of the onset or injury and all subsequent symptoms, their onset, the originating cause of the symptoms, and the pattern since service. Thus, all elements to establish a claim for a disability for service connection for menstrual and abnormal bleeding and subsequent infertility problems. The opinions are also not contradicted by any other medical opinion of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions); See also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (the Board must consider independent medical evidence to support its findings rather than provide its own medical judgment). In a similar manner, the Veteran's history is not contradicted by any other history of a cause for either menstrual and abnormal bleeding or subsequent infertility problems. In sum, the Board finds that the evidence of record is at least in equipoise as to the matter of whether the Veteran's current menstrual and abnormal bleeding and subsequent infertility problems are related to military service. The Board resolves any reasonable doubt in favor of the Veteran and finds that service connection for menstrual and abnormal bleeding and subsequent infertility problems are warranted. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2015). ORDER Entitlement to service connection for menstrual and abnormal bleeding and subsequent infertility problems as residuals of a problematic pregnancy are granted. REMAND The Board must remand the Veteran's claims again for further development. The latest SSOC issued by the RO in May 2015 indicates review of VAMC records to May 2015. The file, however, contains VAMC records only to June 2012. The missing records should be associated with the file. Ongoing VA medical records should also be obtained. See 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). In addition, as to the claim for service connection for an acquired psychiatric disorder, the examiner in an October 2012 VA examination stated the Veteran had a mood disorder and a cognitive disorder but the etiology of each could not be made without speculation. In this regard, in Jones v. Shinseki, 23 Vet. App. 382 (2010), the Court of Appeals for Veterans Claims (Court) held that the Board may not accept an opinion by a VA examiner that an opinion cannot be reached without resorting to speculation when it is unclear whether the limits of medical knowledge had been exhausted or instead further information to assist in making the determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data is required that might reasonably illuminate the medical analysis. The Board remanded this issue in July 2014 as it was not clear from the opinion from the October 2012 VA examination for a determination whether additional evidence would be necessary and obtained for a non-speculative opinion. The Veteran, however, did not report for a March 2015 VA mental health examination. The VA's duty to assist is not a one-way street. If the Veteran wishes help, she cannot passively wait for it in those circumstances where her own actions are essential in obtaining the putative evidence. 38 C.F.R. §§ 3.326, 3.655. Under the circumstances, the Board has determined that the Veteran should be offered another opportunity for a VA mental health examination. The Veteran is thus advised that she has an obligation to assist VA in the development of her claim, to include reporting for examination, and that failure to do so may result in an adverse decision. 38 C.F.R. § 3.655. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA medical records of treatment of the Veteran at the VAMC and associated outpatient clinics from June 2012 to the present. All attempts to obtain these records should be documented in the file. Any negative replies must be in writing, and associated with the file. 2. After the foregoing development is completed, provide the Veteran a VA psychiatric examination to ascertain the nature and etiology of any current psychiatric disability. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The examiner is asked to determine: a). Whether the Veteran has a current psychiatric disability as well as address other psychiatric diagnoses noted in available treatment records and reconcile such diagnoses with the examination results. b). For any acquired psychiatric disability diagnosed at any point during the claims period, the examiner should determine whether it is at least as likely as not (50 percent probability or more) that the diagnosed psychiatric disability began in service, was caused by service, or is otherwise related to service, including as due to a military sexual trauma, to include reported in-service treatment. If, however, after a review of the record, the requested opinion cannot be provided is because the limits of medical knowledge has been exhausted or, instead, because further information to assist in making this determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data is required. If the examiner has determined that specific evidence is missing that is needed to enable the examiner reach an opinion, the examiner should list each fact or evidence and explain why it is needed to form a valid opinion. If additional evidence is identified by the examiner, the RO should attempt to obtain that evidence and readjudicate the claim, including obtaining another medical opinion if necessary. A complete rationale must be provided for any opinion offered. 3. The Veteran should be notified that it is her responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. 4. After the development requested is completed, readjudicate the claims for service connection. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and a reasonable period to respond, and then return the case to the Board. The Veteran 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 2014). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs