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SheilaLundlee

Remand To Amc For Current C&p

Question

My appeal was remanded by BVA to AMC on 27 Feb 2009. The reason for the remand was "To afford the Veteran a VA examination." My appeal issues don't require a CURRENT C&P exam. This is an appeal of my original rating decision - issued in July 2002. My issues are correctly stated in the remand. They require a decision regarding diagnostic coding and disability percentages as they existed in 2001. Any idea how to address this?

Thanks,

Sheila Lundlee

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Thats to long for no action from AMC. I suggest looking at Writ of Mandamus

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Could you please post your BVA docket number from the 2/09 remand, so we have more info?? Thanks!

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My appeal was remanded by BVA to AMC on 27 Feb 2009. The reason for the remand was "To afford the Veteran a VA examination." My appeal issues don't require a CURRENT C&P exam. This is an appeal of my original rating decision - issued in July 2002. My issues are correctly stated in the remand. They require a decision regarding diagnostic coding and disability percentages as they existed in 2001. Any idea how to address this?

Thanks,

Sheila Lundlee

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Here's the remand:

Citation Nr: 0907395

Decision Date: 02/27/09 Archive Date: 03/05/09

DOCKET NO. 06-28 231A ) DATE

)

)

On appeal from the

Department of Veterans Affairs Medical and Regional Office

Center in Fargo, North Dakota

THE ISSUES

1. Entitlement to a separate evaluation for urinary

incontinence, claimed as a symptom or residual of service-

connected colporrhaphy.

2. Entitlement to a separate evaluation for fecal

incontinence as a symptom or residual of service-connected

colporrhaphy.

3. Entitlement to an extra-schedular evaluation for fecal

incontinence as a symptom or residual of service-connected

colporrhaphy.

ATTORNEY FOR THE BOARD

Rory E. Riley, Associate Counsel

INTRODUCTION

The Veteran served on active duty from July 1981 to March

1986, from January 1994 to April 1994, from June 1996 to

November 1996, from October 1997 to April 1998 and from June

1998 to March 1999.

This matter comes before the Board of Veterans' Appeals (BVA

or Board) on appeal from July 2002 and November 2003 rating

decisions of the Department of Veterans Affairs (VA) Regional

Offices (RO) in Honolulu, Hawaii, and Seattle, Washington,

respectively. The July 2002 rating decision granted service

connection for cystocele with urinary incontinence, secondary

to vaginal birth/obstetrical trauma, assigning a 20 percent

evaluation, effective from July 31, 2001, and for rectocele

with fecal incontinence, secondary to vaginal

birth/obstetrical trauma, assigning a 10 percent evaluation,

effective from July 31, 2001. Subsequently, in her May 2003

notice of disagreement (NOD), the Veteran contended that

these disabilities should be evaluated as 50 percent

disabling under Diagnostic Code 7512, surgical complications

of pregnancy, which are rated as a voiding dysfunction.

Accordingly, the November 2003 rating decision then modified

the Veteran's separate ratings for urinary and fecal

incontinence and instead granted service connection for

cystocele and rectocele, secondary to vaginal

birth/obstetrical trauma, assigning a 50 percent evaluation,

effective from July 31, 2001, pursuant to Diagnostic Cod

7512. The Veteran then appealed that decision to BVA, and

the case was referred to the Board for appellate review.

Specifically, the Veteran contends that separate evaluations

for urinary incontinence and fecal incontinence are

warranted, in addition to the 50 percent evaluation assigned

for cystocele and rectocele.

The Board notes that in a September 2005 statement, the

Veteran notified VA that she was relocating to Fargo, North

Dakota. Accordingly, the appeal is now under the

jurisdiction of the Fargo RO, which issued the August 2006

statement of the case (SOC) and February 2007 supplemental

statement of the case (SSOC), and which certified the

Veteran's appeal to the Board.

The appeal is REMANDED to the RO via the Appeals Management

Center (AMC), in Washington, DC. VA will notify the

appellant if further action is required.

REMAND

Reason for Remand: To afford the Veteran a VA examination.

The law provides that VA shall make reasonable efforts to

notify a claimant of the evidence necessary to substantiate a

claim and requires VA to assist a claimant in obtaining that

evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp.

2008; 38 C.F.R. § 3.159 (2008). Such assistance includes

providing the claimant a medical examination or obtaining a

medical opinion when such an examination or opinion is

necessary to make a decision on a claim. 38 U.S.C.A. §§

5103, 5103A (West 2002 & Supp. 2008); 38 C.F.R. § 3.159

(2008).

In this case, the Veteran is currently in receipt of a 50

percent rating pursuant to Diagnostic Code 7623, surgical

complications of pregnancy. As noted above, the Veteran

contends that she is entitled to a higher evaluation pursuant

to other relevant Diagnostic Codes because the medical

evidence demonstrates that she has both rectocele and

cystocele, which are marked by urinary and fecal

incontinence.

The Veteran was previously afforded a VA examination in April

2002. At that examination, the examiner reported that the

Veteran did not have maceration or skin breakdown which would

be expected with chronic urinary or fecal incontinence.

Similarly, a December 2000 VAMC treatment note states that

the Veteran had good sphincter control. However, at her

January 2007 Decision Review Officer (DRO) hearing, the

Veteran testified that she wore absorbent materials which she

changed twice per day and that she experienced involuntary

bowel movements several times per week, such that she had to

wear pads and that she experienced regular leakage.

Similarly, January 2006 and May 2002 VAMC treatment notes

state that the Veteran experienced frequent incontinence and

that she wore a pad at all times, and April 2003 and June

2004 VAMC treatment notes provide that the Veteran had poor

sphincter control and no control, respectively.

In addition, the Board observes a January 2007 private

medical evaluation which states that urinary and fecal

incontinence seemed most likely caused not by cystocele

itself or with childbearing, but with the Veteran's

colporrhaphy surgery. However, the private medical opinion

focused on the Veteran's symptoms beginning with her surgery,

and not on the relevant rating criteria.

Thus, there is conflicting evidence about the current

severity and manifestations of the Veteran's service-

connected colporrhaphy. As such, the Veteran should be

afforded a VA examination which addresses the relevant rating

criteria for urinary and fecal incontinence, including

voiding dysfunction, urinary frequency, obstructed voiding

and impairment of sphincter control.

Moreover, it has been nearly 7 years since the Veteran's last

VA examination. In this regard, the Board notes that VA's

duty to assist includes, when appropriate, the duty to

conduct a thorough and contemporaneous examination of the

Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In

addition, where the evidence of record does not reflect the

current state of the Veteran's disability, a VA examination

must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589

(1991). An examination too remote for rating purposes cannot

be considered "contemporaneous." Caffrey v. Brown, 6 Vet.

App. 377, 381. Therefore, because it is uncertain whether

the April 2002 VA examination reflects the current state of

the Veteran's disability, she must be scheduled for a new

examination in order to ascertain the current severity of her

service-connected conditions.

Accordingly, the case is REMANDED for the following action:

1. The Veteran should be afforded an

appropriate VA examination to ascertain

the current severity and manifestations of

her service- connected colporrhaphy, to

include urinary and fecal incontinence.

Any and all studies, tests, and

evaluations deemed necessary by the

examiner should be performed. The

examiner is requested to review all

pertinent records associated with the

claims file and to comment on the severity

of the Veteran's urinary and fecal

incontinence. Specifically, the examiner

should note whether there is any objective

findings upon examination or in the record

consistent with the extent of urinary and

fecal incontinence reported by the

Veteran, to include her January 2007 DRO

hearing testimony. The examiner should

report all signs and symptoms necessary

for rating the Veteran's disability under

the relevant rating criteria, to include

the use of any absorbent materials, and if

so, how often those absorbent materials

must be changed, as well as any evidence

of involuntary bowel movements or leakage.

See 38 C.F.R. §§ 4.114, 4.115a, Diagnostic

Codes 7332, 7512.

A clear rationale for all opinions would

be helpful and a discussion of the facts

and medical principles involved would be

of considerable assistance to the Board.

Since it is important "that each

disability be viewed in relation to its

history [,]" 38 C.F.R. § 4.1 (2008),

copies of all pertinent records in the

Veteran's claims file, or in the

alternative, the claims file, must be made

available to the examiner for review.

The appellant has the right to submit additional evidence and

argument on the matter or matters the Board has remanded.

Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim 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 Supp. 2008).

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Thanks, but I'm not particularly upset (this time). I've had multiple irons in the fire and I haven't had time to send in more info to AMC. Also, I found a BVA decision that EXACTLY mirrors my issues and it was issued in Jun 2009; now I can submit that to them...

wow ,, i feel bad for you ,, i thought i was waiting a long time ,, i was remanded to the amc 12-09 ,, had c&p , 1-10 ,,, , and thought i'm waiting too long ,, but your 10 months longer ,, hang in there ,,,

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I wanted to point out that I requested a DRO hearing in conjunction with my original/initial appeal and that was conducted in May 2003. I specifically told them that I believed I was entitled to a 50% evaluation for DC 7623 Pregnancy, surgical complications of: With rectocele or cystocele; AND separate evaluations for my fecal incontinence and my urinary incontinence. I have maintained the same claim throughout the appeal process.

Here is a quote from a BVA decision dated 1 Jun 2009 DOCKET NO. 06-05 687 (this servicemember has already received the 50% rating for her rectocele):

The Issues: " Entitlement to a separate compensable evaluation for

fecal leakage."

Findings of Fact: "The Veteran's fecal leakage caused by her service-

connected rectocele, manifested by constant slight fecal

leakage, is not duplicative of, or overlapping with, the

symptomatology for evaluating her rectocele under DC 7623."

Conclusions of Law: "A separate 10 percent rating for fecal incontinence due

to service-connected rectocele is warranted. 38 U.S.C.A.

§§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1, 4.14,

4.114, DC 7332 (2008); 57 Fed. Reg. 10451-01 (Mar. 26, 1992);

60 Fed. Reg. 19851-02 (Apr. 21, 1995)."

The July 2002 rating decision granted service

connection for cystocele with urinary incontinence, secondary

to vaginal birth/obstetrical trauma, assigning a 20 percent

evaluation, effective from July 31, 2001, and for rectocele

with fecal incontinence, secondary to vaginal

birth/obstetrical trauma, assigning a 10 percent evaluation,

effective from July 31, 2001. Subsequently, in her May 2003

notice of disagreement (NOD), the Veteran contended that

these disabilities should be evaluated as 50 percent

disabling under Diagnostic Code 7512, surgical complications

of pregnancy, which are rated as a voiding dysfunction.

Accordingly, the November 2003 rating decision then modified

the Veteran's separate ratings for urinary and fecal

incontinence and instead granted service connection for

cystocele and rectocele, secondary to vaginal

birth/obstetrical trauma, assigning a 50 percent evaluation,

effective from July 31, 2001, pursuant to Diagnostic Cod

7512. The Veteran then appealed that decision to BVA, and

the case was referred to the Board for appellate review.

Specifically, the Veteran contends that separate evaluations

for urinary incontinence and fecal incontinence are

warranted, in addition to the 50 percent evaluation assigned

for cystocele and rectocele.

Edited by SheilaLundlee

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