Citation Nr: 18140902 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-29 052 DATE: October 9, 2018 REMANDED The claim of entitlement to an increased (compensable) rating for irregular uterine bleeding is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1988 to December 1992. This appeal to the Board of Veterans’ Appeals (Board) arose from a February 2015 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, denied an increased (compensable) rating for the Veteran’s service-connected condition of irregular uterine bleeding. In May 2015, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in April 2016, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in June 2016. The appeal was then certified to the Board in June 2017. Here, the Veteran is seeking an increased rating for her service-connected condition of irregular uterine bleeding, which disability is currently evaluated as noncompensably (zero percent) disabling under 38 C.F.R. § 4.116, Diagnostic Code (DC) 7699-7613. See 38 C.F.R. §§ 4.20 (providing for ratings by analogy when an unlisted disease, injury, or residual condition is encountered; 4.27 (providing that hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned). Specifically, DC 7613 pertains to disease, injuries, or adhesions of the uterus and provides that a zero percent (noncompensable) disability rating is warranted for symptoms that do not require continuous treatment. 38 C.F.R. § 4.116, DC 7613. A 10 percent rating is assignable for symptoms that require continuous treatment, and a 30 percent rating, the maximum available under DC 7613, is assignable for symptoms not controlled by continuous treatment. Id. Here, the agency of original jurisdiction (AOJ) denied a compensable rating upon finding that the Veteran’s symptoms, to include pelvic pain, bleeding, and frequent menstrual disturbances did not require treatment or continuous medication. Notably, after the appeal was certified to the Board in June 2017, additional VA treatment records were associated with the claims file. These records contain a treatment note from July 2017 wherein it is indicated that the Veteran had declined treatment by a gynecologist for her menorrhagia (abnormally heavy bleeding at menstruation) as she was the considering a work-up for fertility. In this regard, the Board notes that any pertinent evidence submitted by a claimant or his representative after an appeal is certified to the Board must be referred to the AOJ, unless such evidence is accompanied by a waiver of consideration by the AOJ or the Board determines that the benefit(s) to which the evidence relates may be fully allowed on appeal without such referral. 38 C.F.R. § 20.1304(c); see Disabled American Veterans v. Sec’y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (holding that appellants are denied “one review on appeal to the Secretary” when the Board considers additional evidence without having to remand the case to the AOJ for initial consideration, and without having to obtain the appellant’s waiver). The Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, § 501, Pub L. 112-154, 126 Stat. 1165 (August 6, 2012), however, amended 38 U.S.C. § 7105 by adding new paragraph (e) and providing that if new evidence is submitted with or after a Substantive Appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. See 38 U.S.C. § 7105(e); see also VA Fast Letter 14-02 (May 2, 2014). Although in the instant case, the Veteran’s VA Form 9 with respect the issue of entitlement to an increased (compensable) rating for her irregular uterine bleeding was filed in June 2016, the VA treatment records were not submitted by the Veteran; instead, the treatment records VA-generated evidence. Thus, the automatic waiver provision of 38 U.S.C. § 7105(e) do not apply in this case. See 38 U.S.C. § 7105(e) (providing for initial review by the Board “if the claimant or the claimant’s representative . . . submits evidence”). Further, to the extent that the Veteran could waive AOJ consideration in the first instance of VA generated evidence such as treatment records, there is no waiver in this case. Accordingly, because the July 2017 treatment record is pertinent to whether a higher rating may be warranted for the Veteran’s irregular uterine bleeding, as it suggests that the Veteran’s disability may if fact require treatment, a remand of the claim is required for the issuance of a supplemental statement of the case (SSOC). Moreover, the indication of recommended treatment for the Veteran’s menorrhagia suggests to the Board that the Veteran’s disability may have worsened since last examined in July 2014, as the report of that examination states that the Veteran had not then had treatment for her uterine condition. Given this evidence, the Board finds that a remand is also necessary for the Veteran to be scheduled for a new examination to obtain more contemporaneous gynecological findings in order to assess the severity of the service-connected condition in this case. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (providing that a veteran must be afforded a thorough and contemporaneous examination when the record does not adequately reveal the current state of his disability and that the need for a contemporaneous examination occurs when there is evidence of a possible increase in disability since the last examination); see 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran is hereby advised that, failure to report to the scheduled examination, without good cause, may result in denial of the claim for increase. See 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the AOJ should obtain and associate with the claims file any copy(ies) of correspondence referencing the date and time of the examination—preferably, any notice(s) of examination—sent to her by the pertinent medical facility. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, it appears from the record currently before the Board that the Veteran is receiving treatment from the VA Gulf Coast Veterans Health Care System in Biloxi, Mississippi, and records from that facility dated through August 2017 are of record. However, more recent treatment records may exist. Therefore, on remand, the AOJ should obtain all pertinent, outstanding records of evaluation and/or treatment of the Veteran from the VA Gulf Coast Veterans Health Care System dated since August 2017, following the current procedures prescribed in 38 C.F.R. § 3.159(c) regarding requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claim on appeal, explaining that he has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1). But see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). In its letter, the AOJ should specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) records. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claim on appeal. As a final matter, the Board notes that July 2014 VA examination report recorded diagnoses of abnormal uterine bleeding and fibroid. The AOJ thereafter requested a medical opinion concerning whether the Veteran’s current fibroids are related to or caused by the Veteran’s in-service irregular bleeding. An additional opinion was provided in July 2014, which opinion attributes the Veteran’s painful irregular periods in service to the fibroid that was not found until the Veteran was afforded a sonogram 31 months after service, in 1995. Despite the suggestion that the Veteran has fibroids that may be attributable to service and were indicated to be the cause of her in-service irregular bleeding, it does not appear that the AOJ has considered whether the Veteran’s service connected condition should encompass her fibroids and/or whether an additional award of service connection should be made. On remand, the AOJ should undertake appropriate action to ensure that characterization of the Veteran’s disability accurately reflects that nature of her condition. The matter is hereby REMANDED for the following action: Obtain from the VA Gulf Coast Veterans Health Care System all outstanding records of evaluation and/or treatment of the Veteran dated since August 2017. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file 1. Send to the Veteran a letter requesting that she provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that she has a full one-year period to respond (although VA may decide the claim within the one-year period). If the Veteran responds, assist her in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 2. After all records and/or responses received from any contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination for gynecological conditions by an appropriate physician. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should identify, and comment on the nature, frequency and/or severity (as appropriate), of all symptoms attributable to the Veteran’s service-connected disability, to include the impact of such on the Veteran’s fertility. See 38 C.F.R. § 4.116, Note 2 (providing that disabilities rated under Diagnostic Codes for Gynecological Conditions and Disorders of the Breast should be reviewed for consideration of entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(k) for anatomical loss or loss of use of one or more creative organs. The examiner should note specifically whether the Veteran’s condition require continuous treatment and, if so, whether symptoms are or are not controlled by continuous treatment. If treatment has been recommended, but declined by the Veteran, the examiner should note this and should opine on whether the Veteran’s symptoms would likely be controlled by any recommended treatment. The examiner should discuss all findings in relation to the pertinent evidence of record, particularly the Veteran’s previous VA examination conducted in July 2014 and any lay and clinical evidence suggesting that her overall symptoms have subsequently worsened. Additionally, based on the examination findings/testing results, and review of the Veteran’s documented medical history and assertions, the examiner should indicate whether, at any time pertinent to the March 2014 claim for increase, the Veteran’s disability has changed in severity; and if so, the approximate date(s) of any such change(s), and the extent of severity of the disability at each stage. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 3. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file any copy(ies) of correspondence referencing the date and time of the examination—preferably, any notice(s) of examination—sent to him by the pertinent medical facility. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal. If the Veteran fails, without good cause, to report to the scheduled examination, in adjudicating the reopened claim, apply the provisions of 38 C.F.R. § 3.3655(b), as appropriate. Otherwise adjudicate the increased rating claim on a de novo basis, considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. As part of the adjudication of the claim on appeal, the AOJ should consider the July 2014 medical opinion attributing the Veteran’s in-service irregular bleeding to the fibroid only discovered 31 months after service. The AOJ should ensure that characterization of the Veteran’s disability includes all conditions related to service, to potentially include her fibroids and/or consider whether an additional, separate rating is warranted for her fibroids. Also consider entitlement to SMC under 38 U.S.C. § 1114(k), as directed by 38 C.F.R. § 4.116, Note 2. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Neilson, Counsel