Citation Nr: 1736614	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  12-24 745	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for a gynecological disorder, claimed as a uterine tumor.

2.  Entitlement to service connection for a gastrointestinal disorder, claimed as stomach ulcers and a hiatal hernia.

3.  Entitlement to service connection for a respiratory disorder, claimed as sleep apnea and emphysema.

REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant
ATTORNEY FOR THE BOARD

Roya Bahrami, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1968 to January 1971.

These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2010 and July 2013 rating decisions by the Winston-Salem, North Carolina RO. 

In August 2010, the RO denied, in pertinent part, the Veteran's application to reopen claims for stomach ulcers and a gynecological disability, to include tumors of the uterus.  The Veteran filed a notice of disagreement in September 2010.  The RO issued a statement of the case dated in July 2012, and the Veteran submitted her substantive appeal in July 2012.

In July 2013, the RO denied service connection for a respiratory disorder, claimed as sleep apnea and emphysema.  The Veteran filed a notice of disagreement in September 2013.  The RO issued a statement of the case dated in October 2014, and the Veteran submitted her substantive appeal in December 2014.

In August 2014, the Board reopened and remanded a claim of service connection for an acquired psychiatric disorder.  A November 2015 rating decision granted service connection for major depressive disorder.  As such, the matter is no longer before the Board.  The remaining issues on appeal were remanded for further development. 

In March 2016, this case was remanded in order to afford the Veteran a videoconference hearing before the Board.  In June 2016, the Veteran, accompanied by her representative, testified by videoconference before the undersigned.  A transcript of the hearing has been associated with the Veteran's claims file.

In August 2016, the Board reopened the claims for gynecological disorder, a gastrointestinal disorder, and a respiratory disorder, and remanded the claims for further development.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

In this case, substantial compliance with the Board's August 2016 remand instructions was not accomplished and another remand is warranted to ensure such compliance.  Stegall v. West, 11 Vet. App. 268 (1998).

As noted in the August 2016 Remand, the Veteran testified before the Board as to having gastrointestinal pains and stomach issues in service, as well as gynecological disorders dating from in and shortly after military service.  The service treatment records indicate complaints of abnormal menstrual cycles.  She also had complaints of stomach pain after eating in June 1970 and the possibility of ulcer was raised.  In July 1969, the Veteran was seen for stomach complaints and it was reported that she was unable to keep anything in her stomach for two weeks.  She was noted to have cramping in the lower abdomen and irregular menstrual cycles.

Shortly after service, in December 1972, the Veteran was noted to have left uterine adhesions and complaints of pain for the past one and a half years.  A history provided by her treating physician in March 1993 indicated that the Veteran had chronic gynecological disorders, including uterine fibroids, since April 1983 when he first started treating her.  A November 1993 gynecological visit diagnosed leiomyomata uteri, stable in size with symptoms well controlled by Anaprox.  She testified before the Board that she continued to undergo treatment for gynecological conditions.  The Veteran also has a current diagnosis of gastrointestinal reflux disease (GERD).

With respect to the Veteran's respiratory claim, the Veteran carries current diagnoses of obstructive sleep apnea, COPD, and emphysema.  The Veteran testified before the Board that she has had problems with sleep in service and since her military service and was told that she snored a lot.  Post service, after visiting her sister, who pointed out that the Veteran jerked and rolled in her sleep and that her breath cut out, the Veteran underwent testing and was diagnosed with sleep apnea.  She was prescribed a CPAP.  She was told that her respiratory conditions may be secondary to her service-connected depression.  In this regard, the Board notes that an August 2009 medical note indicating that the Veteran's insomnia may be due to depression.

In light of the foregoing, the Board remanded the Veteran's claims in order to afford the Veteran VA examinations and etiological opinions.  The Board specifically instructed the examiner/s to provide a complete rationale, and to take into account the Veteran's competent report of symptoms, treatment, and injuries in formulated the requested opinions.

The Veteran was afforded a VA examination in February 2017.  The Board notes that the examination and opinions were rendered by the same physician, a general practitioner.  The examination reports all essentially contain the same opinion-that there are no medical records indicating in-service pulmonary, gastrointestinal, or gynecological pathology. 

These opinions are inadequate for the following reasons.  First, the examiner failed to address the Veteran's competent statements about her symptoms and history of injuries and treatment.  Second, the examiner did not comment on the significance of the Veteran's documented history of symptoms and treatment, as summarized above.  In short, the opinion lacks an adequate rationale.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from whether it is factually accurate, fully articulated, and has sound reasoning for the conclusion).  Consequently, remand is required to afford the Veteran adequate examinations.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided).  The Board further finds that opinions from separate, appropriate specialist physicians are warranted.

Accordingly, the case is REMANDED for the following action:

1.  Obtain an opinion from an appropriate specialist physician to determine the etiology of the Veteran's claimed gynecological disorder, to include uterine fibroids.  If the physician determines an examination is necessary, one should be provided.

The claims file must be sent to the physician for review.

The physician should indicate whether it is as least as likely as not (50 percent probability or more) that any gynecological disability is related to the Veteran's military service.

A complete rationale should accompany any opinion provided.

The physician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that her reports must be taken into account in formulating the requested opinion.

2.  Obtain an appropriate specialist physician to determine the etiology of the Veteran's claimed gastrointestinal disorder, including ulcers and hiatal hernia.  If the physician determines an examination is necessary, one should be provided.

The claims file must be sent to the physician for review.

The examiner should indicate whether it is as least as likely as not (50 percent probability or more) that any gastrointestinal disability is related to the Veteran's military service.

A complete rationale should accompany any opinion provided.

The physician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that her reports must be taken into account in formulating the requested opinion.

3.  Obtain an opinion from an appropriate specialist physician to determine the etiology of the Veteran's claimed respiratory disorder, to include sleep apnea and emphysema.  If the physician determines an examination is necessary, one should be provided.

The claims file must be sent to the physician for review.

The physician should indicate whether it is as least as likely as not (50 percent probability or more) that any current respiratory disability is related to the Veteran's military service.

A complete rationale should accompany any opinion provided.

The physician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that her reports must be taken into account in formulating the requested opinion.

4.  After undertaking any additional development deemed appropriate in addition to that requested above, readjudicate the issues on appeal.  If any benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), 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 your appeal.  38 C.F.R. § 20.1100(b) (2016).
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