Citation Nr: 1424191 Decision Date: 05/29/14 Archive Date: 06/06/14 DOCKET NO. 12-13 021 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for aplastic anemia and paroxysmal nocturnal hemoglobinuria and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) that denied the claim. That decision recharacterized the Veteran's prior claim for aplastic anemia and paroxysmal nocturnal hemoglobinuria as a claim for chronic B-cell leukemia for purposes of readjudication under a Nehmer v. United States Veterans' Administration, 712 F. Supp. 1404 (N.D. Cal., May 2, 1989) review following the addition of chronic B-cell leukemia to the Agent Orange presumptive list in 38 C.F.R. § 3.309(e). The claim was denied because the Veteran's diagnosed disability is not a chronic B-cell leukemia. The Veteran's claim has been recharacterized on the cover page to more accurately reflect the issue on appeal. In June 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. The issue of service connection for aplastic anemia and paroxysmal nocturnal hemoglobinuria (also adjudicated as chronic B-cell leukemia), is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A January 1997 Board decision denied service connection for aplastic anemia and paroxysmal nocturnal hemoglobinuria, and a motion for reconsideration of that decision was denied by the Board in July 1997. The Veteran did not appeal either the Board decision or the denial of the motion for reconsideration, and the January 1997 decision is final. 2. The evidence submitted since the January 1997 Board decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim for service connection for aplastic anemia and paroxysmal nocturnal hemoglobinuria. CONCLUSION OF LAW New and material evidence has been submitted, and the Veteran's claim of entitlement to service connection for aplastic anemia and paroxysmal nocturnal hemoglobinuria is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the Veteran has submitted new and material evidence sufficient to reopen his claim for service connection for aplastic anemia and paroxysmal nocturnal hemoglobinuria. Service connection claims for those disorders were denied in a January 1997 Board decision because the Board found that there was no nexus between the Veteran's aplastic anemia and paroxysmal nocturnal hemoglobinuria and service, nor was there evidence of aplastic anemia to a compensable degree within one year of service. That decision became final because the Veteran did not appeal, and his motion for reconsideration was denied. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2013). Since January 1997, new evidence has been added to the claims file that is material to the Veteran's claim. Specifically, a private physician opined in May 2012 that it is "very reasonable and probably correct to say" that the paroxysmal nocturnal hemoglobinuria "was present for at least several years prior to the diagnosis in 1972." Such an opinion places the onset of the Veteran's blood disorder in service. As the evidence of a nexus between the disorder and service was not available at the time of the January 1997 denial, it is new. Moreover, when presumed credible, the new evidence establishes a nexus between the disorder and service; thus, it is also material. Accordingly, the Board finds that the Veteran has submitted new and material evidence sufficient to warrant reopening his claim for service connection for a blood disorder. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER New and material evidence having been submitted, the claim for service connection for aplastic anemia and paroxysmal nocturnal hemoglobinuria is reopened, and to that extent only, the appeal is granted. REMAND Having reopened the claim for service connection, the Board finds that remand is necessary for a new etiological opinion. A March 2011 VA examiner found that paroxysmal nocturnal hemoglobinuria "has never been associated with Agent Orange" but has been known to present occasionally as aplastic anemia. However, the examiner did offer an opinion as to whether the Veteran's aplastic anemia, diagnosed in November 1971, has been associated with herbicide exposure, or whether such disorder was present prior to the November 1971 diagnosis. In this regard, the Board observes that at the time of his initial treatment for anemia in November 1971, the Veteran specifically reported that ever since returning from Vietnam, he "tended to acquire colds a bit more than average." Further, since the March 2011 VA opinion, the Veteran has submitted additional evidence in support of his claim, including a May 2012 private opinion suggesting that the Veteran's anemia was present for years prior to the initial diagnosis. He has also submitted internet articles discussing an association between toxic chemicals and aplastic anemia. Therefore, a new opinion is necessary. On remand, the AOJ should ask the Veteran to identify any additional, pertinent medical treatment that he has received, and take appropriate measures to obtain relevant records identified which are not duplicates of records already in the file. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask that he identify any VA and non-VA records pertaining to his blood disorder. The AOJ should take appropriate measures to request copies of any relevant records identified which are not duplicates of records already in the file. Any negative response should be associated with the claims file. 2. After the above development has been completed to the extent possible, send the Veteran's claims file to a VA a hematologist or oncologist for an opinion. If a new examination is deemed necessary to respond to the questions presented below, one should be scheduled. Following review of the claims file the specialist should respond to the following: a. Is it or at least as likely as not (50 percent or greater probability) that the Veteran's current aplastic anemia or paroxysmal nocturnal hemoglobinuria had its onset during service? Please explain why or why not, to include discussion of the May 2012 private physician's positive opinion; the May 1995 VA examiner's notation that it took "many months" for the Veteran to become anemic; and, the November 1971 private treatment record documenting the Veteran's complaints of fatigue, easy bruising, and his specific report of acquiring more colds since returning from Vietnam. b. If the Veteran's aplastic anemia or paroxysmal nocturnal hemoglobinuria did not begin in service, is it at least as likely as not that either condition is etiologically related to service, to include herbicide exposure therein? Please explain why or why not. In rendering this opinion, please address the internet articles of record indicating an association between chemical exposures and aplastic anemia; and the November 1971 medical treatment record documenting inquiry into the Veteran's history of exposure to chemicals or solvents. 3. After the above has been completed to the extent possible and any other development deemed necessary accomplished, the case should again be reviewed. If the claim remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further 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. 2013). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs