Citation Nr: 21063848 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 20-04 365 DATE: October 18, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for diabetes mellitus, type II, is remanded. Entitlement to service connection for right hip disability is remanded. Entitlement to service connection for left hip disability is remanded. Entitlement to service connection for right knee disability is remanded. Entitlement to service connection for diverticulitis, including secondary to service-connected total hysterectomy, removal of uterus and both ovaries, is remanded. Entitlement to service connection for sepsis is remanded. Entitlement to service connection for residuals of breast cancer, status post double breast mastectomy, including secondary to service-connected total hysterectomy, removal of uterus and both ovaries, is remanded. Entitlement to service connection for mastectomy scars is remanded. Entitlement to an evaluation in excess of 50 percent for total hysterectomy, removal of uterus and both ovaries, is remanded. Entitlement to an initial evaluation in excess of 10 percent for left knee osteoarthritis is remanded. Entitlement to a compensable initial evaluation for left knee surgical scars is remanded. Entitlement to an effective date prior to November 2, 2017, for the award of service connection for left knee osteoarthritis is remanded. Entitlement to an effective date prior to November 2, 2017, for the award of service connection for left knee scars is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 1973 to January 1993. For her meritorious service, the Veteran was awarded (among other decorations) the Meritorious Service Medal and the Army Commendation and Achievement Medals. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), seeking review of the RO's December 2019 rating decision which denied the issues of entitlement to a compensable initial evaluation for hysterectomy scars, and entitlement to an effective date prior to February 1, 1993, for the award of service connection for hysterectomy scars. These HLR issues were subsequently addressed in March 2021 and June 2021 rating decisions by the RO, and are not within the jurisdiction of this appeal. 1. Entitlement to service connection for a back disability is remanded. 2. Entitlement to service connection for an acquired psychiatric disorder is remanded. 3. Entitlement to service connection for diabetes mellitus, Type II, is remanded. 4. Entitlement to service connection for left hip disability is remanded. 5. Entitlement to service connection for right hip disability is remanded. 6. Entitlement to service connection for right knee disability is remanded. 7. Entitlement to an effective date prior to November 2, 2017, for the award of service connection for left knee osteoarthritis is remanded. 8. Entitlement to an effective date prior to November 2, 2017, for the award of service connection for left knee scars is remanded. An October 2021 Social Security Administration (SSA) inquiry indicates that there are outstanding records from SSA relating to SSA disability benefits awarded to the Veteran beginning in October 2008. The duty to assist requires a remand to obtain these potentially relevant SSA records. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). 9. Entitlement to service connection for diverticulitis, including secondary to total hysterectomy, removal of uterus and both ovaries, is remanded. 10. Entitlement to service connection for sepsis, including secondary to diverticulitis, is remanded. In March 2021, the Veteran's representative submitted a brief arguing that the Veteran's diverticulitis was caused or aggravated by her service-connected total hysterectomy, removal of uterus and both ovaries. In support of this claim, the Veteran submitted a February 2021 statement indicating that she first started having gastrointestinal issues after her total hysterectomy in 1991, and that she eventually required colon resection surgery in January 1998 and upper intestinal surgery in September 2010, the latter of which led to an infection and sepsis. The Board cannot make a fully-informed decision on these issues because no VA examiner has opined whether the Veteran's diverticulitis developed secondary to the Veteran's service-connected total hysterectomy, removal of the uterus and both ovaries. Accordingly, an examination should be obtained, along with an opinion as to the relationship of these conditions, if any, and the Veteran's service-conencted total hysterectomy, removal of uterus and both ovaries. 11. Entitlement to service connection for residuals of breast cancer, status post double breast mastectomy, including secondary to total hysterectomy, removal of uterus and both ovaries, is remanded. 12. Entitlement to service connection for mastectomy scars is remanded. In October 2020, the Veteran's representative submitted a brief which argued that medications (including hormonal replacement therapy) taken by the Veteran to treat her service-connected total hysterectomy, removal of uterus and both ovaries, caused or aggravated her subsequent development of breast cancer, status post double breast mastectomy. In support of this claim, the Veteran submitted an article suggesting that the use of hormonal replacement therapy leads to a higher risk of being diagnosed with breast cancer. The Board cannot make a fully informed decision on these issues because no VA examiner has opined whether the Veteran's residuals of breast cancer, status post double breast mastectomy (and its associated surgical scarring), developed secondary to the Veteran's service-connected total hysterectomy, removal of uterus and both ovaries. Accordingly, an examination, along with an opinion as to the relationship, if any, of these conditions and the Veteran's service-connected total hysterectomy, removal of uterus and both ovaries. 13. Entitlement to an evaluation in excess of 50 percent for removal of uterus and both ovaries is remanded. A review of the record reveals that a new examination of the Veteran's total hysterectomy, removal of uterus and both ovaries, was requested in October 2021, but not yet performed. Given this pending request, the Veteran's allegations of a worsening condition, along with the passage of time since her most recent VA examination for this condition in November 2017, a new VA examination is necessary to determine the current severity of this disability. 14. Entitlement to an initial evaluation in excess of 10 percent for left knee osteoarthritis is remanded. 15. Entitlement to a compensable initial evaluation for left knee surgical scars is remanded. In her March 2021 brief, the Veteran contends that her left knee osteoarthritis has continued to worsen since her most recent VA examination of this condition in October 2019; and that this condition now hinders her ability to perform even sedentary work. A February 2021 statement from the Veteran indicated that her left knee disability is now manifested by shooting pain and swelling, with flare-ups that can occur up to 4 times per week and can reach a severity of 10 out of 10 on the pain scale. Under these circumstances, a new VA examination is necessary to determine the current severity of these disabilities. 16. Entitlement to a TDIU is remanded. Finally, because a decision on the remanded issues above could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. Thus, a remand of this issue is required for readjudication following completion of further action on the remaining issues on appeal. The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated her for her claimed disabilities. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. Obtain all pertinent records relating to the Veteran's SSA disability benefits, beginning in October 2008. 3. Schedule the Veteran for a VA examination for her diverticulitis. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran's diverticulitis at least as likely as not related to her service? If not, is the Veteran's diverticulitis at least as likely as not proximately due to or aggravated, i.e., worsened beyond its natural progression, by her service-connected total hysterectomy, removal of the uterus and both ovaries. The examiner's opinion should include consideration of whether the Veteran's service-connected total hysterectomy, removal of the uterus and both ovaries, was related to her post service bowel resection due to bowel blockage in January1998 and her upper intestinal surgery in 2010, which led to an infection and sepsis. Provide a rationale to support the opinions. In providing the requested opinion, consider the Veteran's description of her in-service injury and symptoms as well as her post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about her symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 4. If, and only if, an examination has not been held for the Veteran's service-connected total hysterectomy, removal of uterus and both ovaries, subsequent to September 2021, schedule her for an examination by an appropriate clinician to determine the current severity of her service-connected total hysterectomy, removal of uterus and both ovaries. 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 should identify all limitations or functional impairment caused solely by her service-connected removal of uterus and both ovaries. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected left knee osteoarthritis. The examiner should provide a full description of this disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected left knee surgical scars. 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. (Continued on next page) 7. Following the above, the RO should readjudicate the issues remaining on appeal, with consideration as appropriate of recent amendments to the regulations used in evaluating musculoskeletal system and muscle injuries. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). If any benefit sought is not granted, the appellant and her representative are to be furnished an SSOC and given the requisite opportunity to respond before the case is returned to the Board. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Yates, 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.