Citation Nr: 1824397 Decision Date: 04/25/18 Archive Date: 05/03/18 DOCKET NO. 14-35 957 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for pelvic pain, requiring the need for a hysterectomy. REPRESENTATION Veteran represented by: Brett Buchanan, Agent ATTORNEY FOR THE BOARD Monica Dermarkar, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1999 to September 2003. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In Clemons, the Court explained that in determining the scope of a claim, the Board must consider the Veteran's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Clemons, 23 Vet. App. at 5. In light of the Court's decision in Clemons, the Board has recharacterized the claim of entitlement to service connection for hysterectomy to entitlement to service connection for pelvic pain, requiring the need for a hysterectomy. This will provide the most favorable review of the Veteran's claims in keeping with the Court's holding in Clemons. The Board recognizes that the Veteran's representative raised the issue of entitlement to service connection for depression secondary to hysterectomy on the VA Form 9. However, the Board does not have jurisdiction over this issue at this time. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that her hysterectomy was related to her in-service gynecological medical problems and pelvic pain. The Veteran's representative acknowledged that the Veteran's enlistment exam along with pre-service medical records documented a prior history of pelvic pain, but the Veteran and her representative contend that the pain "dramatically increased in both frequency and severity while in service." As a result, after discharge from the military, a hysterectomy was recommended in order to alleviate the Veteran's pain. A VA medical opinion was requested in February 2016. The examiner opined that the Veteran's hysterectomy, which clearly and unmistakable existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. In support of the examiner's opinion, the examiner reported that the Veteran had an endometrial ablation in December 2010 and tubal ligation in 2003 after the delivery of her child. The examiner reported that the Veteran also had an abnormal pap-smear in August 2010. The examiner expressed that all the procedures incurred after discharge from service. The examiner stated that the Veteran had no documented medical evidence of diagnosed gynecological conditions and no documented evidence of worsening of her pre-existing symptoms during service. The examiner did not provide a complete rationale discussing the Veteran's contentions that her pelvic pain "dramatically increased in both frequency and severity while in service." Further, the examiner did not adequately explain how post-service procedures provided clear and unmistakable evidence that the disability pre-existed service and were not aggravated by service. Thus, the Board must remand the appeal to obtain an adequate examination. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. After completing directive #1, schedule the Veteran for a VA examination by an appropriate VA examiner to determine the nature and etiology of the Veteran's hysterectomy. (a) Is there clear and unmistakable evidence that a disability manifested by pelvic pain that lead to the post-service hysterectomy pre-existed service? (b) If so, is there clear and unmistakable evidence that a disability manifested by pelvic pain that lead to the post-service hysterectomy was not aggravated by service beyond the natural progress of the disease? (c) Is it at least as likely as not that the Veteran continues to have residual disability related to the in-service pelvic pain that result that lead to the post-service hysterectomy? The examiner is advised that the Veteran is competent to attest to observable symptoms, such as pain. If there is a medical basis to support or doubt the Veteran's reports of symptomatology, the examiner should provide a fully reasoned explanation. The examiner should consider all pertinent and relevant evidence of record, to include that contained in the service treatment records. A complete rationale should be provided for all opinions. 3. After completing any additional notification or development deemed necessary, the Veteran's claim should be readjudicated. If the claim remains denied, the Veteran and her representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response. 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. §§ 5109B, 7112 (2012). _________________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).