Citation Nr: 21028523 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-51 863 DATE: May 11, 2021 REMANDED Entitlement to service connection for a heart disability, to include irregular heartbeat, is remanded. Entitlement to service connection for a sleep disability, to include sleep apnea, is remanded. Entitlement to service connection for ovarian cyst is remanded. Entitlement to service connection for endometriosis is remanded. Entitlement to service connection for residuals of tubal ligation surgery with abdominal pain is remanded. Entitlement to an initial rating in excess of 10 percent for degenerative disc/joint disease of the cervical spine is remanded. Entitlement to an initial rating in excess of 10 percent for asthma is remanded. Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD), is remanded. Entitlement to an initial compensable rating for hirsutism is remanded. Entitlement to an initial compensable rating for migraine headaches is remanded. Entitlement to an initial rating in excess of 10 percent for right hip degenerative arthritis, is remanded. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served in active duty for more than 11 years, including from October 1985 to April 1988, February to November 1997, December 1997 to April 1998, August 2004 to August 2005, and January 2007 to October 2012. These matters are on appeal from May 2013, September 2013, and April 2017 rating decisions from Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board and was remanded in July 2019. A January 2020 rating decision assigned the Veteran an increased initial rating of 10 percent for her right hip degenerative arthritis. But because the highest possible rating for this disability has not been assigned for the entire rating period, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to service connection for a heart disability, to include irregular heartbeat, is remanded. 2. Entitlement to service connection for a sleep disability, to include sleep apnea, is remanded. 3. Entitlement to service connection for ovarian cyst is remanded. 4. Entitlement to service connection for endometriosis is remanded. 5. Entitlement to service connection for residuals of tubal ligation surgery with abdominal pain is remanded. The Board finds the duty to assist has not been satisfied as to the service connection claims. The Veteran was provided a March 2017 VA examination which is unfortunately inadequate. The examination report opinion is based on an inaccurate premise as to the presence of endometriosis, ovarian cysts, or residuals of tubal ligation due to conflicting evidence listed in the examination report and cursory rationale. The Veteran's service records show diagnoses of ovarian cysts and the examiner noted December 2014 ultrasound revealed nabothian cysts, but then opined there was no evidence of disability. See March 2017 VA Opinion. The Veteran was also diagnosed with endometriosis in service and has credibly reported symptoms of this disability after discharge. The Board finds the March 2017 opinion is inconsistent and cursory. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board also notes the examiner did not identify any findings from physical examination regarding the Veteran's tubal ligation, including when the procedure was performed, or indications of adhesions or scarring. Accordingly, the Veteran should be afforded an appropriate examination to determine the nature and etiology of her claimed endometriosis, ovarian cysts, or residuals of tubal ligation. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In regard to VA's remaining duties to assist, the Board notes the Veteran's VA medical records after January 2020 are not associated with the claims file. See January 2020 Medical Record. Those VA treatment records are constructively of record and must be secured to allow for a fully informed appellate review. Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Given the remand for the Veteran's VA medical records, she is requested to provide release for or copies of her medical records from Dr. Rebecca (for the claimed heart condition), Georgetown Sleep Center (for the claimed sleep disability), Dr. Sosa (for the claimed gynecological conditions), and Dr. Irvine (for the service-connected neck disability). The Board remanded these claims previously for the Veteran to authorize release of her medical records from Dr. Rebecca, Dr. Sosa, Georgetown Sleep Center, and Dr. Irvine. 38 C.F.R. § 3.159(c)(1). In a March 2017 VA heart examination, the Veteran reported receiving medical care through a private cardiologist, Dr. Rebecca, since 2016. In a March 2017 VA sleep apnea examination, the Veteran reported having a sleep study at Georgetown Sleep Center, where she was diagnosed with insomnia and restless leg syndrome. In a March 2017 VA gynecological conditions examination, the Veteran reported that she was seen by a private gynecologist, Dr. Sosa, for chronic pelvic pain and irregular menses. The Veteran did not respond to two requests for the release of this information. See July 2019 Correspondence; see also June 2020 Correspondence. 6. Entitlement to an initial rating in excess of 10 percent for degenerative disc/joint disease of the cervical spine is remanded. 7. Entitlement to an initial rating in excess of 10 percent for asthma is remanded. 8. Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD), is remanded. 9. Entitlement to an initial compensable rating for hirsutism is remanded. 10. Entitlement to an initial compensable rating for migraine headaches is remanded. 11. Entitlement to an initial rating in excess of 10 percent for right hip degenerative arthritis, is remanded. Service connection for asthma, GERD, right hip degenerative arthritis, hirsutism, and migraine headaches were granted in an April 2017 rating decision. In May 2017, the Veteran submitted a timely notice of disagreement regarding the initial ratings assigned. A Statement of the Case (SOC) has been issued and the Veteran perfected an appeal to these issues. She has not been examined for these disabilities since March 2017 and the Board finds that a current examination is warranted to determine the current severity of her service-connected disabilities. See Snuffer v. Gober, 10 Vet. App. 400 (1997). It is the responsibility of the Veteran to report for any scheduled examination and to cooperate in the development of remanded appeals, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 12. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The issue of entitlement to a TDIU was raised by the record in a February 2017 VA mental disorders examination in which the Veteran reported that she had not worked since March 2014. See February 2014 Examination. The Veteran meets the schedular criteria for TDIU but has not provided a complete educational and employment history by responding to a request for a VA Form 21-8940. See June 2020 Correspondence. Because a decision on the remanded issues herein could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. The Veteran should again be requested to provide a VA Form 21-8940 for her claim for TDIU. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (The duty to assist is not always a one-way street. If a Veteran wishes help, they cannot passively wait for it in those circumstances where they may or should have information that is essential in obtaining the putative evidence.) The matters are REMANDED for the following action: 1. The AOJ should make an attempt to obtain any private treatment records identified by the Veteran that are not currently associated with the claims file. 2. Associate with the record any VA medical records not already of record pertaining to treatment of the Veteran. 3. Schedule the Veteran for examination with an appropriate clinician to determine the etiology of the Veteran's claimed endometriosis, ovarian cysts, or residuals of tubal ligation. The record and a copy of this Remand must be made available to the clinician. After eliciting a detailed history from the Veteran, the examiner should address the following: a. The examiner should provide an opinion on whether the Veteran manifested gynecological disabilities of endometriosis, ovarian cysts, or residuals of tubal ligation at any point after discharge. b. If the Veteran manifested endometriosis at any point after discharge, is this disability at least as likely as not incurred in service or due to disease or injury in service. c. If the Veteran manifested ovarian cysts at any point after discharge, is this disability at least as likely as not incurred in service or due to disease or injury in service. d. If the Veteran manifested residuals of tubal ligation, including scars or adhesions at any point after discharge, is this disability at least as likely as not incurred in service or due to disease or injury in service. 4. Schedule the Veteran for appropriate examinations to ascertain the severity of her cervical spine degenerative disc disease and right hip degenerative arthritis disabilities. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing and must also 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 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 appropriate examinations to ascertain the severity of her asthma, the examination should include pulmonary function testing or an explanation why PFT was not conducted. 6. Schedule the Veteran for appropriate examinations to ascertain the severity of her GERD, hirsutism, and migraine headaches disabilities. 7. Send the Veteran a request for a VA Form 21-8940. ERIC MINE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Trickey 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.