Citation Nr: 21032181 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 14-21 882 DATE: May 26, 2021 REMANDED Entitlement to service connection for bilateral carpal tunnel syndrome, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a left ovary disorder, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1986 to March 2006. This matter comes before the Board of Veterans' Appeals (Board) from July 2012 and December 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In an August 2017 rating decision, service connection was granted for removal of the right ovary secondary to service-connected hysterectomy with right salpingo-oophorectomy due to symptomatic uterine fibroids. As such, the issue with respect to ovarian cysts has been recharacterized to comport with the evidence. The Board remanded the case in April 2018 for further development including obtaining outstanding medical records and VA examinations. A March 2020 rating decision granted entitlement to service connection for cervical degenerative disc disease and is considered a full grant of benefits, therefore that issue is no longer before the Board. The RO issued a March 2020 supplemental statement of the case (SSOC) on the remaining issues and the case was returned to the Board for adjudication. Nevertheless, on September 4, 2020, the Board remanded the Veteran's claims for a second time, in order to obtain complete opinions as to secondary service connection and secondary aggravation. The Veteran was issued a Supplemental Statement of the Case (SSOC) on February 17, 2021. The Board accordingly reasserts jurisdiction. Service Connection The Board finds that additional development is required before the claims on appeal may be decided. Bilateral Carpal Tunnel Syndrome The Veteran asserts that her bilateral carpal tunnel syndrome is entitled to service connection as either directly due to service, or as secondary to her service-connected cervical spine disorder. In February 2021 VA medical opinions, the examiner opined that the Veteran's diagnosed right and left carpal tunnel syndrome were less likely than not related to service, to include as secondary to service connected disabilities. In reaching these conclusions, the examiner commented that there was no evidence of bilateral carpal tunnel syndrome documented in the Veteran's service treatment records and that although the Veteran had a documented complaint of upper extremity tingling, the examiner indicated that it was caused by poor circulation. The examiner also indicated that the Veteran's post-service medical records did not contain a complaint of bilateral carpal tunnel syndrome until 2009. Additionally, the examiner provided secondary medical opinions. The Board finds that it is unable to decide the claims based on the findings contained within the February 2021 VA medical opinion reports. In this regard, the examiner did not explain what, if any, reason why the Veteran's in-service complaint of tingling due to poor circulation was not related to carpal tunnel syndrome, as the Board notes that carpal tunnel syndrome may cause poor circulation. Further, the examiner did not explain the significance, if any, of the first documented complaint of carpal tunnel syndrome occurring approximately 3 years following separation from service. Therefore, the Board finds that new VA medical opinions are warranted to address the nature and etiology of her claimed bilateral carpal tunnel syndrome. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers the right to compliance with remand orders). Left Ovary Disorder By way of background, in the April 2018 remand, based upon the Veteran's contentions of ongoing pain in her pelvic area due to chronic ovarian cysts, her history of ovarian cysts, vaginal cysts, a total vaginal hysterectomy and right salpingo-oophorectomy, uterine fibroids, and removal of the right ovary, the Board determined a VA examination was warranted with respect to the nature and etiology of any left ovarian cysts. See December 2005 Service Treatment Records, January 2013 notice of disagreement (NOD). The Board remand requested the VA examiner's opinion on direct service connection in addition to whether the condition was caused or aggravated by a currently service-connected disability. In a November 2019 VA examination, the examiner opined the Veteran's chronic ovarian cysts were not directly related to her service and further, not caused by her service-connected hysterectomy. However, the VA examiner failed to provide an opinion or rationale regarding whether the Veteran's current service-connected disabilities, including her hysterectomy related to symptomatic fibroids and removal of her right ovary, worsened or aggravated her condition of chronic ovarian cysts. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Therefore, the Board once again found that the November 2019 VA examination was not adequate regarding the Veteran's claim for entitlement for service connection for chronic ovarian cysts. The Veteran's claims file was forwarded to an examiner in December 2020, and the opinions appear to state that the Veteran's left ovary disorder is not attributable to service, on a direct or secondary basis. However, the Board notes that in addition to in-service diagnoses of ovarian cysts (which have been previously addressed in Board remands), the evidence of record also contains documented in-service abdominal pain, which were not addressed by the December 2020 VA examiner. See, e.g.: STR (Nov. 4, 1990). Therefore, the Board finds that new VA medical opinion is warranted to address the nature and etiology of her claimed left ovary disorder. Stegall v. West, 11 Vet. App. 268. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records from March 2020 to present. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and her representative and afford her an opportunity to submit any copies in her possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, obtain an etiology opinion from an appropriate examiner to determine the nature and etiology of the Veteran's claimed right and left carpal tunnel syndrome. The need for a physical examination or telehealth evaluation is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. Based on the review of the record, the examiner must provide an opinion as to the following: (A) Is at least as likely as not (50 percent or better probability) that any currently present right and left carpal tunnel syndrome had its onset during his active service or is otherwise etiologically related to such service? (B) Is at least as likely as not (50 percent or better probability) that any currently present right and left carpal tunnel syndrome were caused OR aggravated by her service-connected cervical spine and lumbar spine disabilities. The examiner must consider the Veteran's lay statements regarding the onset and continuity of her symptoms. The examiner should specifically consider and address an undated Report of Medical Assessment in the Veteran's service treatment records that documents a complaint of arm tingling. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 3. Following the receipt of outstanding records, obtain an etiology opinion from Dr. A.R.L. who performed the December 2020 examination of the Veteran as pertaining to ovarian cysts; if Dr. A.R.L. is not available, then forward the claims file to a similarly qualified gynecologic medical professional to determine the nature and etiology of the Veteran's claimed left ovary disorder. The need for a physical examination or telehealth evaluation is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. Based on the review of the record, the examiner must provide an opinion as to the following: (A) Is at least as likely as not (50 percent or better probability) that any currently present left ovary disorder, to include an ovarian cyst, had its onset during his active service or is otherwise etiologically related to such service? (Continued on the next page) (B) Is at least as likely as not (50 percent or better probability) that any currently present left ovary disorder was caused OR aggravated by her service-connected hysterectomy with right salpingo-oophorectomy due to symptomatic fibroids. The examiner must consider the Veteran's lay statements regarding the onset and continuity of her symptoms. The examiner should specifically address the complaints of abdominal pain as well as ovarian cysts in the Veteran's service treatment records. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. CHRISTOPHER J. O'DONNELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED