Citation Nr: 1704644 Decision Date: 02/15/17 Archive Date: 02/24/17 DOCKET NO. 12-33 968 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for residuals of a pregnancy. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran had active service from March 1988 to March 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. A March 2011 decision granted entitlement to a total rating due to individual unemployability based upon service-connected disabilities effective February 14, 2007. In a March 2015 decision, the Board denied the Veteran's claim of entitlement to service connection for residuals of a pregnancy. The Veteran appealed the Board's denial of this issue to the United States Court of Appeals for Veterans Claims (Court). In a July 2016 Memorandum Decision, the Court vacated the Board's decision and remanded this matter to the Board for development and readjudication. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND As discussed above, in March 2015, the Board denied the Veteran's claim of entitlement to service connection for residuals of a pregnancy. The Board found that "the weight of the evidence did not establish a current diagnosis or objective findings of a current residual disability due to pregnancy." See Board decision, page 8. Of note, pregnancy and childbirth are not disabilities for VA rating purposes, but chronic residuals of medical or surgical complications of pregnancy may be disabilities for rating purposes 38 C F R § 4 116, Note 1. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court). In July 2016, the Court issued a Memorandum Decision that set aside the March 2015 Board decision and remanded the claim to the Board for compliance with the directives contained in the July 2016 Memorandum Decision. The Court's July 2016 Memorandum Decision indicated that the Board failed to discuss materially favorable evidence in determining whether the Veteran has a current disability or persistent and recurrent symptoms of disability. Specifically, VA treatment records dated in May 2011 noted occasional spotting and in January 2013 a VA physician noted that she had "relatively heavy menstrual cycles." The Veteran's brief to the Court also noted that she continued to experience symptoms such as irregular menstrual cycles, upset stomach, bleeding, and abdominal pain. On this basis, the Court found that the Board's statement of reasons or bases for denying the appellant's claim is inadequate. The Court remanded the case to the Board to adequately discuss whether the evidence cited above triggered VA's duty to provide an examination pursuant to McLendon v. Nicholson, 20 Vet. App. 81 (2006). In light of the Memorandum Decision and the May 2011 and January 2013 VA treatment records which indicated complaints of occasional spotting and heavy menstrual cycles which the appellant contends are residuals of a pregnancy, the Board finds that a VA examination and VA medical opinion should be obtained that addresses the nature and etiology of the Veteran's claimed residuals of a pregnancy. McLendon, supra; see also 38 C.F.R. § 3.159 (c) (4)(holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any current gynecological disability, claimed as residuals of a pregnancy. The examiner should diagnose any current gynecological disability and then address the following questions: Is it at least as likely as not that the Veteran has a gynecological disability, including residuals of a pregnancy, that is related to any incident of service? Why or why not? In so doing, the examiner should review the May 2011 and January 2013 VA treatment records which indicate complaints of occasional spotting and heavy menstrual cycles. As well as the Veteran's contention that she continues to experience symptoms such as irregular menstrual cycles, upset stomach, bleeding, and abdominal pain. 2. Then readjudicate the issue on appeal. If the claim remains denied, provide the Veteran and her representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ MATTHEW W. BLACKWELDER 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) (2016).