Citation Nr: 21062670 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 17-36 689 DATE: October 8, 2021 REMANDED Entitlement to service connection for a gynecological disability manifested by dysmenorrhea and anemia is remanded. REASONS FOR REMAND The Veteran had active service from June 1986 to November 1986; April 1987 to June 1987; September 1989 to December 1991; July 1995 to September 1995; and February 1996 to February 1998. She served in the Southwest Asia theater of operations from August 1990 to March 1991. This issue initially comes before the Board of Veterans' Appeals (Board) from an August 1995 rating decision, issued by the Department of Veterans Affairs (VA) Regional Office (RO). As noted by the Board in a May 2019 remand, in November 2014, additional service treatment records were associated with the Veteran's claims file. Under 38 C.F.R. § 3.156(c), reconsideration of the service connection claim initially denied by way of the August 1995 rating decision was thus warranted. Specifically, the Board noted with respect to the issue of entitlement to service connection for gynecological condition manifested by dysmenorrhea and anemia, a review of the record reflected that in November 2014, additional, relevant service department records that existed but were not of record at the time of the August 1995 rating decision denying service connection for a gynecological condition were associated with the Veteran's claims file. Under 38 C.F.R. § 3.156(c), when VA receives relevant official service department records that existed and had not been associated with the claims file when VA first denied the claim, VA will reconsider the claim. Thus, the issue of whether there was clear and unmistakable error in the August 1995 rating decision which denied service connection for a gynecological condition manifested by dysmenorrhea and anemia was found to be moot, as the August 1995 rating decision is not final. The issue of entitlement to service connection for a gynecological condition manifested by dysmenorrhea and anemia was remanded by the May 2019 Board decision for further development and readjudication of the claim for a gynecological condition on a de novo basis. Caffrey v. Brown, 6 Vet. App. 377 (1994); 38 C.F.R. § 3.327(a). The Board also stated that the readjudication must consider the claim under the Persian Gulf War presumption as well, as set out in 38 C.F.R. § 3.317. The Veteran has now returned to the Board on appeal after the supplemental statement of the case denied the Veteran's claim for a gynecological condition manifested by dysmenorrhea and anemia. While the Board sincerely regrets the delay, the claim must be remanded again for a medical opinion to be obtained. 1. Entitlement to service connection for a gynecological disability manifested by dysmenorrhea and anemia is remanded. The Veteran contends that she is due entitlement to service connection for a gynecological disability manifested by dysmenorrhea and anemia, including under 38 C.F.R. § 3.317 for an undiagnosed Gulf War illness. By way of background, as discussed above, in an August 1995 rating decision, the RO denied the Veteran's claim of service connection for a gynecological condition manifested by dysmenorrhea and anemia, finding that there was "no record of a gynecological condition manifested by dysmenorrhea and anemia showing a chronic disability subject to service connection." The RO noted that record contained post-service clinical records showing that the Veteran had been "seen in the outpatient clinic for complaints of heavy periods and possible anemia," but that no underlying disability had been identified. The RO found that "dysmenorrhea in and of itself is a finding and is not a disease or disability for which service connection may be granted." The Veteran subsequently submitted multiple additional claims of service connection, including in August 2015, when she sought to reopen her claim of service connection for dysmenorrhea. Records obtained in connection with these claims included the Veteran's official service department records, which were received by the VA between November 2014 and May 2015. As noted above, since the August 1995 rating decision, additional, relevant service department records that existed but were not of record at the time of the August 1995 rating decision denying service connection for a gynecological condition manifested by dysmenorrhea and anemia were associated with the Veteran's claims file. Under 38 C.F.R. § 3.156(c), when VA receives relevant official service department records that existed and had not been associated with the claims file when VA first denied the claim, VA will reconsider the claim. The May 2019 Board decision remanded that case back to the RO, as the issue had not been considered in the first instance. Bernard v. Brown, 4 Vet. App. 384 (1993) (holding that before the Board may address a matter that has not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument, an opportunity to submit such evidence or argument, and an opportunity to address the question at a hearing, and whether the claimant has been prejudiced by any denials of those opportunities). Included in the documents submitted by the Veteran was a September 1997 letter from a private physician who noted that she had been treating the Veteran for six months for continuing problems related to her periods. She indicated that they were becoming heavier and were associated with increased cramping. The physician noted that the Veteran also had a history of anemia for which she was on chronic iron supplements. The physician noted that the Veteran had chosen to pursue a hysterectomy to alleviate her symptoms. Private clinical records show that in October 1997, while on active duty, the Veteran sought definitive surgical treatment for increasing dysmenorrhea and menorrhagia. She indicated that her periods were becoming increasingly lengthy and were associated with increasing flow, cramping and pain. She also reported anemia in the past for which she took iron supplements. The Veteran underwent a total abdominal hysterectomy at St. Joseph Regional Health Center. While the hysterectomy essentially resolved the Veteran's gynecological condition, the Board notes that the requirement that a veteran have a current disability before service connection may be awarded is satisfied when the veteran has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the claim's adjudication. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Furthermore, as 38 C.F.R. § 3.15(c) notes, because official service department records that existed and had not been associated with the claims file when VA first denied the claim have since been entered into the record, the VA will reconsider the claim. Specifically, 38 C.F.R. § 3.156(c) notes that when official service department records are received after a decision has been issued on a claim, the decision is not final. Therefore, the McClain ruling, combined with 38 C.F.R. § 3.156(c), means that the Veteran's claim was never final. In support of the claim, the Veteran has submitted VA clinical records showing that in October 1994, she had been seen for an annual examination at which she reported a history of dysplasia six years prior (or 1988), which was not during a period of active duty. She reported that her cycle was heavy and that she had questionable anemia. A vaginal/cervical pap smear was negative for malignant cells. The diagnosis was primary dysmenorrhea and past history of dysplasia. The evidence also includes copies of service treatment records showing that in April 1987, the Veteran underwent an examination for purposes of her appointment as an ROTC cadet. At that time, she completed a Report of Medical History on which endorsed a history of having been treated for "a female disorder" and having had a change in her menstrual pattern. The examiner noted that the Veteran had experienced a slight change in her menstrual pattern after discontinuing birth control pills in 1983 but had a regular cycle at present. He also noted a history of cryosurgery for mild dysplasia in 1986, apparently prior to her first period of active duty. On clinical evaluation, vaginal and pelvic examination was normal. Also of record is a March 1992 VA general medical examination report at which the Veteran reported a history of multiple vaginal yeast infections in 1991, although the symptoms had not recurred since October 1991. In addition, the Veteran reported a history of cryosurgery in 1985, prior to her periods of active duty, for abnormal cervical cells. Subsequent Pap smears had been normal, including in November 1991. STRs obtained in November 2014 include a May 1985 enlistment examination at which the Veteran reported a history of menstrual changes after discontinuing birth control pills in January 1984. She denied dysmenorrhea. On clinical evaluation, a pelvic examination was normal. An October 1986 Report of Medical History completed for "Entry Candidate Program" showed that the Veteran reported a history of changes in her menstrual pattern after discontinuing birth control as well as cytoscopy for cervical dysplasia. A clinical evaluation was normal, including a pelvic examination. A Pap was performed in October 1986. The diagnosis was cervical dysplasia treated with cryosurgery, no residual defect noted. In September 2015, the Veteran herself submitted additional records, including what appear to be military treatment records showing that in November 1991, she underwent a pelvic examination and pap in connection with her separation examination. It appears that the examination was normal. In March 1993, not during a period of active service, she sought treatment for dysfunctional uterine bleeding. She reported a history of cervical dysplasia in the past. In October 1994, also not during a period of active service, she sought treatment and complained that her periods were heavy. She also reported questionable anemia. Also submitted by the Veteran was a September 1997 letter from a private physician who noted that she had been treating the Veteran for six months for continuing problems related to her periods. She indicated that they were becoming heavier and were associated with increased cramping. The physician noted that the Veteran also had a history of anemia for which she was on chronic iron supplementation. The physician noted that the Veteran had chosen to pursue a hysterectomy to alleviate her symptoms. Private clinical records show that in October 1997, while on active duty, the Veteran sought definitive surgical treatment for increasing dysmenorrhea and menorrhagia. She indicated that her periods were becoming increasingly lengthy and were associated with increasing flow, cramping and pain. She also reported anemia in the past for which she took iron supplements. The Veteran underwent a total abdominal hysterectomy. In the April 2016 rating decision, the RO granted service connection for a total hysterectomy and assigned an initial 30 percent rating, effective August 17, 2015. As discussed above, however, since the August 1995 rating decision, additional, relevant service department records that existed but were not of record at the time of the August 1995 rating decision denying service connection for a gynecological condition manifested by dysmenorrhea and anemia were associated with the Veteran's claims file. Under 38C.F.R.§3.156(c), when VA receives relevant official service department records that existed and had not been associated with the claims file when VA first denied the claim, VA will reconsider the claim. Regarding the evidence as discussed above, the Board finds that the claim must be remanded for an examiner to review the documents and offer an opinion as to whether a diagnosed disability was present at any point during the appeal period, specifically considering the period between October 1994 (the date of the initial claim filing for a gynecological condition) and October 1997 (when the Veteran had a hysterectomy to alleviate a gynecological condition). The medical examiner must also offer an opinion as to whether there are symptoms between October 1994 to October 1997 that support the finding of an undiagnosed illness under 38 C.F.R. § 3.317. The matters are REMANDED for the following action: Have a duly qualified professional medical examiner review the entire claims file, to include this remand and all evidence cited herein. The examiner must offer an opinion as to whether a diagnosed disability manifested by dysmenorrhea and anemia has existed at any point during the appeal period, with specific attention to the period from the beginning of the appeal period (October 1994) to the hysterectomy (October 1997) that presumably alleviated the Veteran's gynecological condition. If the medical examiner identifies a disability present at any point from October 1994 to the present, they should opine whether it is at least as likely as not that the disability began in service or was incurred in or caused by an in-service injury, event, or illness. The medical examiner should also offer an opinion as to whether a significant number of signs or symptoms were of record that the Veteran had an undiagnosed illness or medically unexplained chronic multi symptom illness (MUCMI) that could lead to presumptive service connection due to her service in the Persian Gulf under 38 C.F.R. § 3.317. The examiner must offer a full rationale with any conclusion or opinion that they come to. The medical examiner does not need to schedule a new VA examination unless one is deemed necessary. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.L. Aumiller, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.