Citation Nr: 18152771 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 16-42 157 DATE: November 26, 2018 REMANDED Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for headaches is remanded. Entitlement to an initial rating in excess of 50 percent for depressive disorder, not otherwise specified (NOS)/cannabis abuse in remission is remanded. Entitlement to an initial compensable rating for status post caesarean section with post-surgical scar tenderness is remanded. Entitlement to an initial rating in excess of 10 percent for scar, status post caesarean section surgery, is remanded. REASONS FOR REMAND The Veteran had active military service from October 2006 to March 2007, from June 2007 to February 2008, from April 2008 to September 2008, and from December 2008 to October 2011. This matter is on appeal from an August 2013 rating decision. The Board observes that in her August 2016 substantive appeal, the Veteran specifically appealed only her initial rating claims. However, all of the issues listed above were certified to the Board on appeal in an October 2016 Certification of Appeal. In essence, the VA Regional Office (RO) appears to have waived any objection it might have had to the content of that appeal, and these issues have now been certified for appeal for over two years. The United States Court of Appeals for Veterans Claims (Court) has held that, in determining the adequacy of a Substantive Appeal, the Board’s use of a nondiscretional jurisdictional analysis is not appropriate, and VA may waive any of the claimant’s pleading requirements. See Gomez v. Principi, 17 Vet. App. 369, 372 (2003). Therefore, the Board considers the service connection issues, as well as the increased rating claims, to be before it on appeal. See Percy v. Shinseki, 23 Vet. App 37 (2009); see Beyrle v. Brown, 9 Vet. App. 24 (1996). 1. Entitlement to service connection for a back disorder is remanded. As discussed below, the Board is remanding the increased rating claims, in part to obtain additional treatment records. As such records might be relevant to the Veteran's claim for service connection for a back disorder, it must be remanded. 2. Entitlement to service connection for headaches is remanded. The Board cannot make a fully-informed decision on the issue of service connection for headaches, because while the Veteran was provided a fee-based examination in November 2012, no medical opinion was provided. A remand is therefore necessary. 3. Entitlement to an initial rating in excess of 50 percent for depressive disorder, NOS/cannabis abuse in remission; an initial compensable rating for status post caesarean section with post-surgical scar tenderness; and an initial rating in excess of 10 percent for scar, status post caesarean section surgery is remanded. The Veteran's August 2016 substantive appeal suggests that her disabilities may have increased in severity since she was last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of her psychiatric, gynecological, and scar disabilities. The matters are REMANDED for the following action: 1. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), make efforts to obtain all records identified by the Veteran, including any outstanding VA treatment records. 2. Accord the Veteran a VA medical examination, with a medical professional of appropriate expertise, who has reviewed the claims file, to determine the nature, extent, and etiology of any back disorder and headaches. (Multiple examinations may instead be conducted; the Board leaves this to the discretion of the Agency of Original Jurisdiction and the facility at which any examination is to be conducted.) The most up-to-date Disability Benefits Questionnaire(s) should be utilized. The examiner must opine as to whether it is at least as likely as not (i.e., probability of approximately 50 percent) that any diagnosed back disorder and headaches are related to the Veteran’s military service. A complete rationale should be given for all opinions and conclusions expressed. Regarding the Veteran’s back, the examiner should consider the Veteran’s March 2012 report of ongoing back pain since a fall in service. If no back disorder is diagnosed, and if any reports of pain do not reach the level of a functional impairment of earning capacity, as defined in Saunders v. Wilkie, 886 F.3d. 1356 (Fed. Cir. 2018), the examiner should so state. 3. Schedule the Veteran for a VA psychiatric examination by an appropriate psychiatrist or psychologist to determine the current severity of her service-connected depressive disorder, NOS/cannabis abuse in remission. The most up-to-date Disability Benefits Questionnaire should be utilized. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to her service-connected psychiatric disorder alone and discuss the effect of the Veteran’s psychiatric disability on any occupational functioning and activities of daily living. All opinions must be supported by a rationale. 4. Schedule the Veteran for a VA gynecological (or equivalent) examination to determine the current severity of her service-connected status post caesarean section with post-surgical scar tenderness and scar, status post caesarean section surgery. The most up-to-date Disability Benefits Questionnaire should be utilized. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. To the extent possible, the examinershould identify any symptoms and functional impairments due to the status post caesarean section with post-surgical scar tenderness and scar, status post caesarean section surgery alone and discuss the effect of the Veteran’s status post caesarean section with post-surgical scar tenderness and scar, status post caesarean section surgery, on any occupational functioning and activities of daily living. (Continued on the next page) All opinions must be supported by a rationale. A.C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Barstow, Counsel