Citation Nr: 18144134 Decision Date: 10/24/18 Archive Date: 10/23/18 DOCKET NO. 15-15 499 DATE: October 24, 2018 ORDER The claim of entitlement to service connection for migraines is dismissed. REMANDED The claim of entitlement to service connection for a bilateral shoulder disability is remanded. The claim of entitlement to service connection for a low back disability is remanded. The claim of entitlement to service connection for a bilateral hip disability is remanded. The claim of entitlement to service connection for a bilateral ankle disability is remanded. The claim of entitlement to service connection for polycystic ovary disease (PCOS) is remanded. FINDING OF FACT In a December 2017 statement from the Veteran, received prior to the promulgation of a decision in the appeal, the Board received notification that the Veteran wished to withdraw from appeal the claim for service connection for migraines.. CONCLUSION OF LAW The criteria for withdrawal of the appeal as to the claim of entitlement to service connection for migraines are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1998 to September 2005. This appeal to the Board of Veterans’ Appeals (Board) arose from a June 2010 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, inter alia, denied service connection for PCOS and bilateral shoulder disability and denied reopening the claims for service connection for bilateral hip disability, bilateral ankle disability and migraines. In November 2011, the appellant filed a notice of disagreement (NOD). In April 2015, a statement of the case (SOC) was issued and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in May 2015. In December 2017, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing has been associated with the claims file. Regarding characterization of the claims for service connection for migraines, bilateral hip and bilateral ankle disabilities, the Board notes that service connection for those disabilities was denied in a February 2006 rating decision. The claims were denied because the Veteran failed to attend a scheduled VA examination. The February 2006 rating decision stated “[i]f you complete a VA examination, this decision will be reconsidered.” Shortly following the issuance of the rating decision, in August 2006, the Veteran e-mailed the RO and explained that she was living in Germany with her husband, who was serving on active duty. She further expressed a willingness to attend a re-scheduled VA examination. The RO did not attempt to schedule the Veteran for another examination. The Board finds she has provided good cause for missing the scheduled VA examination. See 38 C.F.R. § 3.655. Moreover, as the RO stated that it would reconsider the claims if the Veteran attended a VA examination, but the RO did not reschedule the examination, the Board finds that the claims remained pending following the Veteran’s explanation as to why she missed her scheduled VA examination. As such, the claims for service connection for bilateral hip disability, bilateral ankle disability and migraines have remained pending before the RO and the claims are to be considered on a de novo basis, as reflected above. DISMISSAL The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In a December 2017 statement, the Board received notification from the Veteran that she wished to withdraw from appeal the claim of service connection for migraines. Thus, no allegations of errors of fact or law remain for appellate consideration with respect to that matter. Accordingly, the Board does not have jurisdiction to review the appeal as to that matter, and it must be dismissed. REASONS FOR REMAND The Board’s review of the claims file reveals that further action on the remaining claims on appeal, prior to appellate consideration, is warranted. Initially, the Board notes that the Veteran was afforded VA examinations for bilateral hip disability and a right shoulder disability in May 2014. However, the examiner declined to diagnose the Veteran with any hip or right shoulder disability. Under 38 U.S.C. § 1117(a)(1), compensation is warranted for a Persian Gulf Veteran who exhibits objective indications of a “qualifying chronic disability” that became manifest during service on active duty in the Armed Forces in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. Effective October 17, 2016, VA extended the presumptive period in 38 C.F.R. § 3.317(a)(1)(i) through December 31, 2021 (for qualifying chronic disabilities that become manifest to a degree of 10 percent or more after active duty in the Southwest Asia Theater of Operations). See 77 Fed. Reg. 63225. Furthermore, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a), (b). The Board notes that Congress revised 38 U.S.C. § 1117, effective March 1, 2002. In the revised statute, the term “chronic disability” was changed to “qualifying chronic disability,” and the definition of “qualifying chronic disability” was expanded to include (a) undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. Effective June 10, 2003, VA promulgated revised regulations to, in part, implement these statutory changes. See 38 C.F.R. § 3.317(a)(2). Because the Veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War, she is a Persian Gulf veteran within the meaning of the applicable statute and regulation. In light of the above, the Veteran should be afforded a VA Gulf War examination to determine whether her complaints of joint pain can be attributed to clinical diagnoses and, if not, whether the joint pain represents an objective indication of chronic disability resulting from an undiagnosed illness related to the Veteran’s service in Southwest Asia or a medically unexplained chronic multisymptom illness which is defined by a cluster of signs or symptoms, consistent with 38 C.F.R. § 3.317. Regarding the claim for service connection for a bilateral ankle disability, as discussed above, the Veteran provided good cause for missing the scheduled VA examination. See 38 C.F.R. § 3.655. To date, the Veteran has not been afforded a VA examination detailing the nature and etiology of any such bilateral ankle disability. As the Veteran provided good cause for missing the examination pertaining to bilateral ankle disability, she should be rescheduled for such an examination on remand. As regards the claim for service connection for PCOS, the Veteran reported that she received Depo-Provera birth control injections during service. She further explained, at the Board hearing, that her physician has told her that those injections can lead to the development of PCOS. See Board Hearing Transcript (Tr.) at 6-7. Pursuant to VA’s duty to assist, a medical examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; (2) established that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with an established event, injury or disease in service. 38 C.F.R. § 3.159. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims noted that the third prong of 38 C.F.R. § 3.159(c)(4), requiring that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the Veteran’s military service, is a low threshold. McLendon, 20 Vet. App. at 83. To date, no VA examination has been conducted or medical opinion otherwise sought on the matters of whether the PCOS is related to service, particularly Depo-Provera injections. Moreover, the Veteran has testified that she was informed by her physician of a possible link between those injections and the development of PCOS. In light of above, the Board finds that the threshold requirements discussed in McLendon are met, thus warranting examination and opinion to fulfill the duty to assist for the PCOS claim. See Charles v. Principi, 16Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). In doing so, the Board concludes that, in order to fulfill the duty to assist in providing a complete and adequate examination under the circumstances of this case, the examination should reflect review of the entire claims file and should provide an opinion addressing what relationship, if any, PCOS has to her active military service. See Caffrey v. Brown, 6 Vet. App. 377 (1994); 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (duty to assist may include conducting “a thorough and contemporaneous medical examination, one which takes into account the record of prior medical treatment, so that the evaluation of the claims disability will be a fully informed one”). Finally, regarding the claims for service connection for a low back disability and a left shoulder disability, the Veteran was afforded VA examinations in May 2014. The Veteran was diagnosed with left shoulder disorder and lumbar strain. The examiner opined that it was less likely than not that the Veteran’s low back disability was incurred in or caused by the in-service treatment for low back pain in October 2003. As rationale, the examiner stated there is no documentation of what caused low back pain in October 2003, during service and the record does not include treatment for low back pain since service, thereby indicating no chronicity of symptomatology. Similarly, the examiner opined that the Veteran’s left shoulder disability was incurred in or caused by the in-service treatment for left shoulder pain in July 2005. As rationale, the examiner stated there is no documentation of what caused left shoulder pain in July 2005, during service and the record does not include treatment for left shoulder pain since service, thereby indicating no chronicity of symptomatology. The Board finds the opinions inadequate for several reasons. First, the examiner’s rationale relies on a finding that service treatment records do not reveal what caused the Veteran’s low back and left shoulder pain during service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (finding that an examination is inadequate where the examiner relied on lack of evidence in service treatment records to provide a negative opinion). Further, the examiner relied on a lack of treatment records following service to conclude that there was no chronicity of symptomatology. However, the Veteran is competent to report her ongoing symptomatology despite a lack of treatment. Further, as will be discussed in greater detail below, no treatment records have yet been associated with the Veteran’s claims file. Given the above, the Board finds that the medical evidence currently of record is insufficient to resolve the claims for service connection for service connection for low back and left shoulder disabilities, and that outstanding questions pertaining to whether there exists a medical nexus between each of those disabilities and service. Accordingly, the Board finds that further medical opinions-based on full consideration of the Veteran’s documented medical history and assertions, and supported by complete, clearly-stated rationale-is needed to resolve these claims. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon, supra. See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that, once VA undertakes the effort to obtain an opinion when developing a service connection claim, even if not statutorily obligated to do so, it must obtain one that is adequate for purposes of the determination being made). The Veteran is hereby advised that, failure to report to any scheduled examination(s), without good cause, may result in denial of the claim(s). See 38 C.F.R. § 3.655. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and 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 treatment records, the Veteran testified during the Board hearing that she receives ongoing treatment from VA. See Board Hearing Tr. at 7. However, there are no VA treatment records associated with the Veteran’s claims file. As such, it appears that there are outstanding, relevant VA evaluation and treatment records. Thus, on remand, the AOJ should obtain from all outstanding records of VA evaluation and/or treatment of the Veteran, 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 claims on appeal, explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, 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. § 3.156. 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 by the VCAA prior to adjudicating the remaining claims on appeal. The matters are hereby REMANDED for the following action: 1. Obtain all outstanding records of VA evaluation and/or treatment of the Veteran. 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 file. 2. Furnish to the Veteran and her representative a letter requesting that the Veteran provide information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to any remaining claim(s) 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) medical records, and/or employment records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the matter within the one-year period). 3. If the Veteran responds, obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the file, arrange for the Veteran to undergo a VA Gulf War examination, by an appropriate physician, at a VA medical facility. This examination should conform to the guidelines for conducting Gulf War examinations set forth in the Under Secretary for Health’s Information Letter, dated April 28, 1998 (IL 10-98-010), at a VA medical facility. As indicated below, additional specialist examination(s) should be conducted as needed. 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 include discussion of the Veteran’s documented history and lay assertions. (a) The primary Gulf War examiner should note and detail all reported symptoms of bilateral ankle pain, right shoulder pain, and bilateral hip pain. The examiner should conduct a comprehensive general medical examination, and provide details about the onset, frequency, duration, and severity of all symptoms of the bilateral ankles, right shoulder and the bilateral hips and state what precipitates and what relieves them. (b) The examiner should list all diagnosed disabilities that have been present since approximately October 2005 and state which symptoms of joint pain are associated with each disability. If all symptoms of headaches are associated with diagnosed disability(ies), additional specialist examination(s) for diagnostic purposes is/are not needed. (c) If any bilateral ankle, right shoulder and/or bilateral hip pain that has been present since approximately October 2005 is related to a distinct and identifiable disability, then, with respect to each such disability, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the disability (a) had its onset during service; or (b) is otherwise medically-related to the Veteran’s service (d) If any symptoms of joint pain that have been present since approximately October 2005 have not been determined to be associated with a known clinical diagnosis, further specialist examination(s) will be required to address these findings, and should be ordered by the primary examiner. (e) The primary examiner should provide the specialist with all examination reports and test results, specify the relevant symptoms that have not been attributed to a known clinical diagnosis and request that the specialist determine which of these, if any, can be attributed to a known clinical diagnosis and which, if any, cannot be attributed to a known clinical diagnosis. (f) If any joint pain related to the bilateral hips, right shoulder or bilateral ankles that has been present since approximately October 2005 is not due to a distinct and identifiable disability, the specialist should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the headaches represents (a) an objective indication of chronic disability resulting from an undiagnosed illness related to the Veteran's service in Southwest Asia or (b) a medically unexplained chronic multis-symptom illness which is defined by a cluster of signs or symptoms. If so, the examiner should also describe the extent to which the illness has manifested. In addressing the above, the examiner(s) must consider and discuss all relevant medical and other objective evidence of record and all lay assertions, to include the Veteran's assertions as to the nature, onset, and continuity of relevant symptoms. Notably, the absence of documented evidence of treatment for particular symptoms or disability in service should not, alone, serve as the sole basis for a negative opinion. In this regard, the examiner(s) is/are advised that the Veteran is competent to report his symptoms and history, and that his assertions in this regard must be considered in formulating the requested opinions. If lay assertions in any regard are discounted, the examiner(s) should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. Also after all available records and/or responses from each contacted entity are associated with the claims file, arrange for the Veteran to undergo VA examination. 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 include discussion of the Veteran’s documented history and lay 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 Following a review of all the relevant evidence of record, the medical professional should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any PCOS had its onset in service or is otherwise medically-related to service-to particularly include her in-service injections of Depo-Provera. In rendering the requested opinion, the physician must specifically consider and discuss all medical and other objective evidence, as well as all lay assertions. The physician is advised that the Veteran is competent to report matters within her own personal knowledge, to include symptoms and events experienced, and that lay assertions in this regard must be considered in formulating the requested opinion(s). If lay assertions in any regard are discounted, the physician should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 6. Also after all available records and/or responses from each contacted entity are associated with the claims file, arrange to obtain from the March 2014 VA examiner an addendum opinion addressing the etiology of the Veteran's current lumbar strain and left shoulder disorder. If that individual is no longer employed by VA or is otherwise unavailable, document that fact in the claims file, and arrange to obtain medical opinion from an appropriate physician based on claims file review (if possible). Only arrange for the Veteran to undergo further VA examination, by an appropriate physician, if one is deemed necessary in the judgment of the individual designated to provide the addendum opinion. 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 include discussion of the Veteran’s documented history and lay assertions. Following a review of all the relevant evidence of record, the clinician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s diagnosed lumbar strain and/or left shoulder disorder had its onset in service or is otherwise medically-related to service. In rendering the requested opinion, the clinician must consider and discuss all relevant medical and other objective evidence, and all lay assertions-to include the Veteran's competent assertions as to the nature, onset, and continuity of symptoms. The clinician must specifically comment on the service treatment records showing treatment for low back and left shoulder pain. The examiner should not rely on the fact that the service treatment records do not specify what type of low back or left shoulder injury the Veteran sustained during active service. If lay assertions in any regard are discounted, the clinician should clearly so state, and explain why. Complete, clearly-stated rationale for the conclusions reached must be provided. 7. 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). 8. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claims on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel