Citation Nr: 1719785 Decision Date: 06/05/17 Archive Date: 06/21/17 DOCKET NO. 10-47 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a compensable disability rating for Bartholin's cyst, postoperative. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1978 to October 1978. This matter comes before the Board of Veterans' Appeals (Board) from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The issue of whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability was raised by the record in an October 2009 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran is currently seeking entitlement to a compensable disability rating for postoperative Bartholin's cyst. Although the Board sincerely regrets the additional delay this may cause, further development is necessary prior to the adjudication of this claim. At the outset, the Board notes that VA has a duty to assist veterans in substantiating claims for VA benefits, which includes the duty to obtain any records that may be relevant to a veteran's claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (c) (2016). Review of the claims file indicates that the Veteran is in receipt of Social Security Administration (SSA) disability benefits. A January 2008 fax coversheet indicates that the Veteran's related SSA file was provided to VA at that time. However, no such related documents have been uploaded to the Veteran's Veterans Benefits Management System (VBMS) paperless claims processing system. As these records may be relevant to the Veteran's claim, the RO must determine whether a complete copy of the Veteran's SSA record has been made available to VA. If so, said documents must be uploaded to VBMS for the Board's review. Otherwise, additional efforts to obtain said records must be undertaken at this time. The duty to assist further mandates that when VA undertakes to provide a VA examination or to obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the Veteran most recently underwent relevant VA examination in April 2010. The accompanying examination report indicates that certain diagnostic tests were not performed at that time, upon the Veteran's declination to participate. However, in an August 2010 statement, the Veteran reported that the diagnostic tests were not performed at the discretion of the examiner, who iterated that "his decision would not change and he didn't want to give me an examination." The Veteran then indicated her willingness to undergo any diagnostic tests relevant to her claim, and requested that a new VA examination be scheduled. The Board finds the Veteran's argument to be compelling, such that a remand is warranted at this time. See also Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (holding VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity). Finally, the Board acknowledges that a veteran has the right to request a hearing before the issuance of a Board decision. Bernard v. Brown, 4 Vet. App. 384, 393 (1993); 38 C.F.R. § 20.703 (2016). In such a case, the Board may not proceed with review of the claims on appeal without first providing the veteran an opportunity for the requested hearing. Here, the Veteran's November 2010 VA Form 9 requested that a travel board hearing be scheduled in relation to this claim. In April 2017, the Veteran was notified that a videoconference hearing had been scheduled for later that month. The Veteran did not appear, such that she was marked as a "no-show" and her hearing request was considered withdrawn. See 38 C.F.R. § 20.704(d) (2016). However, the Board does not find that proper development was undertaken with regard to the Veteran's hearing request. Review of the record does not indicate that the Veteran requested a videoconference hearing at any time, or otherwise agreed to participate in this manner of hearing. Further, the hearing notice sent to the Veteran is dated April 10, 2017. The hearing was scheduled for April 13, 2017. As such, it is unlikely that the Veteran received sufficiently timely notice of the scheduled hearing to arrange for her participation. Thus upon the completion of the above-mentioned development, the RO is instructed to clarify with the Veteran whether her hearing request is still active, and to take appropriate development thereafter. On remand, the RO should also associate ongoing pertinent VA treatment reports with the record before the Board. 38 C.F.R. § 3.159(c) (2) (2016). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the record all VA treatment records for the Veteran dated from August 2016 to the present. All actions to obtain the requested records should be fully documented in the record. If they cannot be located or no such records exist, the Veteran and her representative should be so notified in writing. 2. Determine if a complete copy of the Veteran's SSA record was made available to VA in January 2008. If so, an entire copy of the Veteran's SSA record must be uploaded to her VBMS file. Otherwise, obtain from the SSA all records associated with the Veteran's receipt of disability benefits. All actions to obtain the requested records should be fully documented in the record. If they cannot be located or no such records exist, the Veteran and her representative should be so notified in writing. 3. Schedule the Veteran for a new VA examination to assess the current nature and severity of her postoperative Bartholin's cyst. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail in accordance with VA rating criteria per Diagnostic Code 7628, to include impairment in function of the urinary or gynecological systems, or skin. It should be noted that the Veteran is competent to attest to matters of which she has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. In particular, the examiner is asked to address the Veteran's November 2010 statement, wherein she reports recurring cysts as a result of her disability. 4. Contact the Veteran to ascertain whether she would like to participate in a Board hearing at this time. If so, schedule the requested hearing and provide the Veteran with timely notice thereof. A copy of the Veteran's notification letter and the hearing transcript should be associated with the claims file. 5. Readjudicate the Veteran's claim. If the benefit sought remains denied, provide a Supplemental Statement of the Case to the Veteran and her representative, and an appropriate period in which to respond. Then, return the appeal to the Board. [CONTINUED ON NEXT PAGE] 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). _________________________________________________ LANA K. JENG 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).