Citation Nr: 18143244 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-01 725 DATE: October 18, 2018 REMANDED Entitlement to a rating in excess of 10 percent for cervical degenerative joint disease prior to October 28, 2016, and in excess of 30 percent thereafter, is remanded. Entitlement to an initial rating in excess of 30 percent for neuropathy of the left upper extremity, associated with cervical degenerative joint disease, is remanded. Entitlement to a compensable rating for hypertension is remanded. Entitlement to service connection for a hysterectomy is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from November 1987 to March 1988, and from November 1988 to June 2001. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In an April 2017 rating decision, the RO granted an increased disability rating for cervical degenerative joint disease to 30 percent, effective October 28, 2016, and granted service connection for neuropathy of the left upper extremity with a disability rating of 30 percent, effective October 28, 2016. Although the RO has granted higher disability ratings, the claims remain in controversy because the Veteran is not in receipt of the maximum benefit allowable. See A.B. v. Brown, 6 Vet. App. 35 (1993). Upon review of the record, the Board finds a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims so that she is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). 1. Cervical Degenerative Joint Disease and Associated Neuropathy, and Hypertension When the agency of original jurisdiction (AOJ) receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case (SOC) or a supplemental statement of the case (SSOC), it must prepare a supplemental statement of the case reviewing that evidence. 38 C.F.R. § 19.31(b)(1) (2017). Further, when evidence is received prior to the transfer of a case to the Board, an SSOC must be furnished to the veteran, and his or her representative, if any, as provided in 38 C.F.R. § 19.31 unless the additional evidence is duplicative or not relevant to the issue on appeal. 38 C.F.R. § 19.37(a). The Board notes that, with respect to the claims of entitlement to a rating in excess of 10 percent for cervical degenerative joint disease, entitlement to a compensable rating for hypertension, and entitlement to service connection for a hysterectomy, the AOJ last adjudicated the claims in an October 2015 SOC. Subsequent to the October 2015 SOC, private and VA outpatient treatment records, a February 2017 VA peripheral nerves examination, and an April 2017 VA cervical spine examination have been associated with the Veteran’s claims file. These records are pertinent to the issues on appeal as they document primary care and medication management, as well as VA examinations for all issues. Thereafter, a rating decision dated April 2017 was issued instead of an SSOC as the RO mistakenly believed that the Veteran had filed a new claim for an increased rating, even though her appeal of the February 2014 rating decision was still pending. However, as 38 C.F.R. § 19.37 requires that an SSOC be issued, the Board concludes that a remand is necessary for the issuance of an SSOC addressing the Veteran’s rating claims. Since an adequate SSOC that addresses all of the pertinent evidence has not been provided to the Veteran, the claims must be returned to the AOJ so that such a document may be issued to the Veteran (and her accredited representative). Thus, the Board finds that the failure to issue an SSOC to provide consideration of the ongoing increased rating claims constituted a failure to comply with procedural due process. See 38 C.F.R. §§ 19.31, 19.37 (2017). Further, the Board may not consider additional evidence not previously reviewed by the AOJ unless a waiver of initial AOJ review is obtained from the Veteran. 38 C.F.R. § 20.1304(c). A review of the claims file reveals that the Veteran has not filed such a waiver. Accordingly, remand for initial consideration by the AOJ and issuance of a SSOC is necessary. 2. Hysterectomy The Veteran contends she is entitled to service connection for a hysterectomy. In January 1989, service treatment records indicate the Veteran endorsed severe cramps and vaginal bleeding. Treatment notes reflect that the Veteran’s pregnancy was complicated by severe hyperemesis. The evidence of record reflects that the Veteran underwent laparoscopic tubal sterilization in July 1996. Service treatment records dated November 1998 reference a July 1997 tubal ligation. Treatment notes from this date indicate that the Veteran was assessed with abnormal vaginal bleeding. Thereafter, in December 1998, the Veteran was assessed with irregular menses. In an April 2000 medical examination board evaluation, the Veteran endorsed that she was treated for a gynecological disorder and had a change in menstrual pattern. Cytology testing in May 2000 noted benign cellular changes associated with the predominance of coccobacilli consistent with a shift in vaginal flora. In an October 2000 physical examination, the Veteran reported that she was treated for a gynecological disorder and had a change in menstrual pattern. The March 2001 VA examination report indicated that the Veteran underwent uterine surgery for an abnormal pap smear. No complications were noted. The report further referenced a 1996 tubal ligation, which also “went well” without complication. In February 2004, the Veteran underwent a transabdominal pelvic ultrasound that showed a “question” of early fibroid formation of the uterus. Thereafter, an August 2005 ultrasound identified a possible small fibroid. In February 2007, the Veteran endorsed a history of irregular menses since the age of 21. A May 2008 pelvic echogram showed a small fundal fibroid and right ovarian follicular cyst. A September 2010 endovaginal ultrasound identified a uterine fibroid. The diagnostic report indicated that the fibroid was in a submucosal and “probably” contributed to the abnormal bleeding history. In June 2011, the Veteran underwent endometrial ablation. In April 2012, the Veteran underwent a total vaginal hysterectomy and cystoscopy. In the March 2014 VA examination report for hematologic conditions, the VA examiner reported that the Veteran noted the onset of her anemia symptoms was in 1998 while stationed at Fort Bragg with fatigue. The VA examiner further noted the Veteran’s history of fibroids, and hysterectomy in 2012. In March 2014, the evidence of record reflects the Veteran was afforded a VA gynecological examination. The examination report referenced the Veteran’s reports of fibroids, excessive bleeding, and hysterectomy in 2012. The VA examiner reported, however, that the Veteran did not have any current symptoms related to a gynecological condition. The Board notes that the VA examiner reported that the Veteran underwent natural menopause. Although the VA examiner noted that the Veteran did not have any current symptoms, the examination report indicated that the Veteran had urinary incontinence and leakage due to her hysterectomy. The VA examiner further reported that the Veteran was diagnosed with endometriosis, but did not have any current findings, signs, or symptoms due to the condition. The VA examiner opined that the Veteran’s hysterectomy is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner noted that the hysterectomy was due to uterine fibroid treatment, which reportedly occurred after separation from service in 2001. In April 2014, an addendum VA opinion was obtained. The VA examiner agreed with the March 2014 VA examiner, and opined that the Veteran’s hysterectomy is less likely as not due to a condition (including abdominal and pelvic pain, abnormal vaginal bleeding, irregular menses, and frequent urination) that had its onset in service. The April 2014 VA examiner noted that the Veteran had abdominal and pelvic pain, abnormal vaginal bleeding, irregular menses, and frequent urination in service in 1989. The VA examiner further indicated that she had no diagnosis of ovarian fibroid. Post-service, the VA examiner indicated that the Veteran developed a fibroid in 2004, and was diagnosed with a fibroid on her ovary in 2008, and thereafter underwent a hysterectomy for fibroid in 2012. The VA examiner indicated that the Veteran’s fibroid did not develop until 2004 after separation from service, and that the abdominal and pelvic pain, abnormal vaginal bleeding, irregular menses, and frequent urination did not cause the hysterectomy, but rather the cause for the hysterectomy was an ovarian fibroid. If VA provides an examination that examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). To have probative value, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As discussed above, the March 2014 and April 2014 VA examiners opined that the Veteran’s hysterectomy was less likely than not incurred in or caused by an in-service injury, event, or illness. However, the September 2010 diagnostic report of an endovaginal ultrasound indicated that the fibroid “probably” contributed to the abnormal bleeding history. It is not clear whether the evaluator was referring to a history starting in service or to a history since the 2004 fibroid diagnosis. While the VA examiners indicated that the hysterectomy was due to the post-service uterine fibroid, they did not adequately address the Veteran’s in-service complaints of abdominal and pelvic pain, abnormal vaginal bleeding, irregular menses, and frequent urination. As such, the opinions are conclusory in nature and are not probative. It is well established that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). As such, the Board finds it must remand the claim for a VA examination to determine the nature and etiology of the claimed hysterectomy. 3. Accredited Representative The Board further finds that a remand is necessary to afford the Veteran the full right to representation in all stages of an appeal. 38 C.F.R. § 20.600 (2017). As noted above, in October 2016, the Veteran validly appointed the North Carolina Division of Veterans’ Affairs, as her representative. The record does not reflect that the Veteran has revoked such appointment. In this regard, the Board notes that when a Veteran has appointed a representative, the AOJ must afford that representative the opportunity to execute a VA Form 646, Statement of Accredited Representative in Appealed Case, prior to certification of the appeal to the Board. The record does not reflect a VA Form 646 is of record or that an attempt was made to obtain a VA Form 646. The absence of a VA Form 646 indicates that the Veteran was not afforded her full right to representation during all stages of the appeal. Id. As such, on remand the North Carolina Division of Veterans’ Affairs must be given an opportunity to offer a written argument on the Veteran’s behalf, and this argument must be considered by the AOJ. The matter is REMANDED for the following action: 1. If there is outstanding evidence, the Veteran should be invited to submit such evidence. 2. Schedule the Veteran for a VA examination with an appropriate VA clinician to determine the etiology of the Veteran’s hysterectomy. The Veteran’s claims file must be made available to the examiner. The examiner should provide the following opinions: (a.) Is it at least as likely as not (probability of 50 percent or more) that the Veteran’s hysterectomy is attributable to or aggravated by service? Please explain why or why not. A detailed rationale for the opinion must be provided. The examiner must address the September 2010 ultrasound report that indicated that a fibroid may have contributed to the Veteran’s abnormal bleeding history and whether this history includes that experienced during service. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. The underlying reasons for any opinions expressed must be included in the report. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. The AOJ must afford the Veteran’s representative, the North Carolina Division of Veterans’ Affairs, the opportunity to file a VA Form 646, Statement of Accredited Representative in Appealed Case, including arguments in support of the claim on appeal before the case is returned to the Board for further appellate review. The opportunity afforded, and any reply received, must be documented in the claims file. 4. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, she should be furnished a supplemental statement of the case. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. A. Ong, Associate Counsel