Citation Nr: 0114224	
Decision Date: 05/21/01    Archive Date: 05/30/01

DOCKET NO.  96-23 337	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, 
South Carolina


THE ISSUES

1.  Entitlement to service connection for a disability 
manifested by dizziness, to include the issue of whether a 
substantive appeal was timely filed.

2.  Entitlement to service connection for ulcers, to include 
the issue of whether a substantive appeal was timely filed.

3.  Entitlement to service connection for gastritis, to 
include the issue of whether a substantive appeal was timely 
filed.

4.  Entitlement to service connection for a right knee 
disability, to include the issue of whether a substantive 
appeal was timely filed.

5.  Entitlement to service connection for a left knee 
disability, to include the issue of whether a substantive 
appeal was timely filed.

6.  Entitlement to service connection for carpal tunnel 
syndrome, to include the issue of whether a substantive 
appeal was timely filed.

7.  Entitlement to service connection for chronic fatigue 
syndrome, to include the issue of whether a substantive 
appeal was timely filed.

8.  Whether new and material evidence has been presented to 
reopen a claim of entitlement to service connection for 
anemia, to include the question of the finality of the rating 
determination of January 1995, denying service connection for 
iron deficiency anemia.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

Brian J. Milmoe, Counsel


INTRODUCTION

The veteran had active military service from April 1989 to 
November 1994.

This matter comes before the Board of Veterans' Appeals 
(Board) from a January 1995 rating decision of the Columbia, 
South Carolina, Regional Office (RO) of the Department of 
Veterans Affairs (VA) which denied the veteran's original 
claims for service connection.  It is noted that, by a 
September 1996 supplemental statement of the case (SSOC), the 
RO found that new and material evidence had not been 
submitted to reopen a claim for service connection for 
anemia.  

The veteran was scheduled to testify before a member of the 
Board at the RO in August 1998.  He failed to report.  No 
other pending request for a hearing either before the RO or 
the Board remains.

In October 1999, the Board remanded the case to the RO for 
consideration of whether the veteran filed a timely 
substantive appeal of his claims and for initial 
consideration by the RO of additional medical records 
associated with the veteran's claims folder in February 1999 
regarding the claim to reopen for service connection for 
anemia.  Following the completion of the RO's efforts, the 
veteran's representative procured additional medical evidence 
pertinent to several of the claims herein at issue, which was 
submitted along with the representative's Informal Hearing 
Presentation in February 2001.  Therein, the veteran's 
representative waived RO review of the additional evidence in 
accordance with 38 C.F.R. § 20.1304 (2000).  

The issue of whether new and material evidence has been 
presented to reopen a claim of entitlement to service 
connection for anemia, to include the question of the 
finality of the rating determination of January 1995, denying 
service connection for iron deficiency anemia, is addressed 
in the REMAND portion of this document.  As well, the 
intertwined issue of the veteran's entitlement to service 
connection for anemia as the result of undiagnosed illness is 
also addressed as part of the Board's REMAND action.

As it did in its remand of October 1999, the Board again 
notes that, the issue of entitlement to service connection 
for various symptoms as chronic disabilities resulting from 
an undiagnosed illness was raised by the veteran's 
representative in a May 1999 Informal Hearing Presentation.  
These claims have not been developed or certified for appeal, 
and will not be addressed in this decision.  They are 
referred to the RO so that clarification may be obtained from 
the veteran as to which claims are being advanced on the 
basis of undiagnosed illness and for the completion of all 
other appropriate development, including initial 
adjudication, regarding such matters.  

In his February 2001 Informal Hearing Presentation, the 
veteran's representative also raised the issue of whether 
there was clear and unmistakable error in a February 1996 
rating decision, denying entitlement to service connection 
for iron deficiency anemia.  As well, based on the 
development actions undertaken by the RO since entry of its 
February 1995 denial, as well as the submission of various 
reports of examination and treatment since that time, claims 
to reopen for service connection for ulcers, gastritis, right 
and left knee disorders, carpal tunnel syndrome, chronic 
fatigue syndrome and a disability manifested by dizziness are 
recognized.  All of the foregoing are referred to the RO for 
initial consideration.  


FINDINGS OF FACT

1.  Service connection for a disability manifested by 
dizziness and service connection for ulcers, gastritis, right 
and left knee disorders, carpal tunnel syndrome, and chronic 
fatigue syndrome was denied by the RO in a January 5, 1995 
rating action, notice of which was mailed to the veteran on 
January 10, 1995; the veteran filed a Notice of Disagreement 
with that decision which was received by the RO on January 8, 
1996.  

2.  A Statement of the Case was provided on February 2, 1996; 
a cover letter advised the veteran of the requirement of 
filing a Substantive Appeal, the time limit in which to 
submit the appeal, and instructions for requesting additional 
time.  

3.  The veteran filed a Substantive Appeal which was received 
by the RO on April 30, 1996.  


CONCLUSION OF LAW

The veteran did not timely perfect an appeal as to his claims 
for service connection for a disability manifested by 
dizziness and service connection for ulcers, gastritis, right 
knee disability, left knee disability, carpal tunnel 
syndrome, and chronic fatigue syndrome, which were denied by 
the RO in a rating decision of January 5, 1995, and the Board 
does not have jurisdiction over an appeal as to those claims.  
38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.200, 20.303 
(2000).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Factual Background

Under cover of January 10, 1995, the RO provided the veteran 
with a copy of its rating decision dated January 5, 1995, in 
which it denied his claims for service connection for 
disability manifested by dizziness and service connection for 
ulcers, gastritis, a bilateral knee disorder, carpal tunnel 
syndrome, and chronic fatigue syndrome.  A Notice of 
Disagreement (NOD) challenging the RO's January 1995 decision 
was received by the RO on January 8, 1996.  

On February 2, 1996, the RO mailed a Statement of the Case 
(SOC) to the veteran with respect to the issues noted above.  
A copy of a VA Form 9, Appeal to Board of Veterans' Appeals 
(also known as the "Substantive Appeal"), was enclosed with 
the SOC.  The RO's transmittal letter warned of the deadline 
for submitting the Substantive Appeal, included a citation to 
the statute setting that deadline, and advised the veteran 
that he could ask for more time if it were required.  A copy 
of the SOC and of the transmittal letter was also sent to the 
veteran's representative.  

On April 30, 1996, the RO received a VA Form 9, Appeal to 
Board of Veterans' Appeals, with respect to the issues of 
entitlement to service connection for a disability manifested 
by dizziness and service connection for ulcers, gastritis, 
right and left knee disorders, carpal tunnel syndrome, and 
chronic fatigue syndrome.  The VA Form 9 was signed by the 
veteran and dated April 1, 1996, and it was submitted to the 
RO through the veteran's representative by means of a 
memorandum, dated April 30, 1996.  Such were date stamped as 
received by the RO on April 30, 1996.  

Subsequently, the RO issued another rating decision on 
February 14, 1996, as well as a Supplemental Statement of the 
Case (SSOC), on February 21, 1996, which continued the denial 
of the veteran's claims.  The representative submitted a VA 
Form 1-646, Statement of Accredited Representative in an 
Appealed Case, and the case was certified to the Board.  

As noted in the Introduction, above, the Board, upon 
preliminary review of this case, noted that there was a 
question as to whether the veteran's Substantive Appeal was 
timely filed, and, in October 1999, the Board, in part, 
remanded the issues presented to the RO for a determination 
on that issue.  The Board's remand informed the veteran of 
all the relevant laws and regulations.  In a letter, dated in 
December 1999, the RO advised the veteran of this 
development, and provided him the opportunity to submit 
additional evidence or written argument on the matter, or to 
request a personal hearing to present such evidence.  The 
veteran's representative was also provided with a copy of 
this letter.  

In a typed statement, dated in December 2000, the veteran 
asserted that he had not filed a timely substantive appeal 
because he was not receiving his mail.  He noted that he had 
been staying with a "hostile young lady" whom he eventually 
left.  Thereafter, he did not have a permanent address and 
was considered homeless.  The young lady informed him that he 
was not receiving any mail, but later admitted that she had 
burned it.  He indicated that he had started living with his 
sister at his current address a couple of years ago, and this 
was when he started receiving his mail concerning the matter.  

II.  Analysis

It is significant that a major change in the law was 
effectuated during the pendency of this appeal, when on 
November 9, 2000, the President of the United States signed 
into law the Veterans Claims Assistance Act of 2000 (VCAA), 
Pub. L. No. 106-475, 114 Stat. 2096 (2000).  Among other 
things, this law eliminated the concept of a well-grounded 
claim, redefined and expanded the obligations of VA with 
respect to the duty to assist, and superseded the decision of 
the United States Court of Appeals for Veterans Claims 
(Court) in Morton v. West, 12 Vet. App. 477 (1999), withdrawn 
sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 
2000) (per curiam order), which had held that VA cannot 
assist in the development of a claim that is not well 
grounded.  This change in the law is applicable to all claims 
filed on or after the date of enactment of the VCAA, or filed 
before the date of enactment and not yet final as of that 
date.  Veterans Claims Assistance Act of 2000, Pub. L. No. 
106-475, § 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000).  
See also Karnas v. Derwinski, 1 Vet. App. 308 (1991).

It is evident that the RO has not considered this matter in 
light of the changes effected by the VCAA.  That 
notwithstanding, the question herein presented, that of 
timeliness of filing of a Substantive Appeal, is by 
definition a legal one, and one governed not by the facts 
presented but by the controlling laws and regulations.  See 
Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994).  Through 
past actions of the RO and Board, the veteran has been 
informed of the laws and regulations governing the timeliness 
of appeal issues, and he has been afforded the opportunity to 
present evidence and/or argument in support of his claims for 
benefits.  Thus, there is found to be no possibility of 
prejudice to the veteran were the Board to proceed to address 
the timeliness of the appeal question in an effort to 
ascertain whether the Board has jurisdiction.  See Bernard v. 
Brown, 4 Vet. App. 384 (1993); VAOGCPREC 16-92, 57 Fed. Reg. 
49,747 (1992).  Similarly, all evidence needed to adjudicate 
the issues herein addressed has been obtained, and no 
prejudice to the veteran would therefore result, despite the 
fact that the RO has not been afforded the opportunity to 
consider whether any additional notification or development 
actions are required under the VCAA.

An appeal to the Board is initiated by filing a timely NOD, 
and is perfected by filing a timely Substantive Appeal.  
38 C.F.R. §§ 20.200, 20.202 (2000).  The Substantive Appeal 
may be set forth on a VA Form 9 or a predecessor form, or on 
correspondence specifically identifying the issues appealed 
and setting out specific arguments relating to the errors of 
fact or law made by the agency of original jurisdiction.  
38 C.F.R. § 20.202 (2000).

To be considered timely, the Substantive Appeal must be filed 
within 60 days from the date that the AOJ mails the SOC to 
the appellant, within the remainder of the one-year period 
from the date of mailing of the notification of the 
determination being appealed, or within any extended time 
limits prescribed pursuant to a timely-filed request for 
extension of time.  38 C.F.R. §§ 20.302(b), 20.303 (2000).  
The Court has held that, if the claimant fails to file a 
Substantive Appeal in a timely manner, "he is statutorily 
barred from appealing the RO decision."  Roy v. Brown, 5 
Vet. App. 554, 556 (1993).  See also YT v. Brown 9 Vet. App. 
195, 198-99 (1996); Cuevas v. Principi, 3 Vet. App. 542, 546 
(1992).  Cf. Rowell v. Principi, 4 Vet. App. 9 (1993).

The evidence of record shows that the RO mailed the veteran 
notification of its decision of January 5, 1995, to deny his 
claims for entitlement to service connection for a disability 
manifested by dizziness and service connection for ulcers, 
gastritis, bilateral knee disabilities, carpal tunnel 
syndrome, and chronic fatigue syndrome on January 10, 1995; 
that the RO received an NOD from him on January 8, 1996; and 
that the RO mailed a SOC to him on February 2, 1996.  It is 
not disputed that his Substantive Appeal was not received by 
the RO until April 30, 1996.  The Board finds that, since the 
veteran's April 30, 1996, Substantive Appeal was received 
beyond one year after notice of the January 5, 1995 rating 
decision (on January 10, 1995) and more than 60 days after 
the issuance of the SOC on February 2, 1996, it may not be 
accepted as timely.  In addition, neither the veteran nor his 
representative requested an extension of time in which to 
file the Substantive Appeal pursuant to 38 C.F.R. § 20.303 
(2000) (which requires a request for extension to be 
submitted in writing and prior to the expiration of time for 
filing the Substantive Appeal).  

The veteran has asserted that he did not receive the letters 
from VA, and that the woman with whom he had been living had 
burned his mail.  In this instance, however, notice letters 
to the veteran from VA were sent to his most recent address 
of record and none were returned as undeliverable by the 
United States Postal Service.  It is not the VA's obligation 
to assure that the veteran actually receives the mail at the 
household in which he is living.  Rather, the regulations 
require only that notice be sent to the latest address of 
record.  Notice means written notice sent to a claimant or 
payee at his or her latest address of record.  38 C.F.R. 
§ 3.1(q) (2000).  The record also reflects that while the 
veteran alleged that he left the home and/or was rendered 
homeless, he made no attempt to inform VA of his change in 
address or of his arrangements to receive mail at another 
location.  "In the normal course of events, it is the burden 
of the veteran to keep the VA apprised of his whereabouts.  
If he does not do so, there is no burden on the part of the 
VA to turn up heaven and earth to find him."  Hyson v. Brown, 
5 Vet. App. 262, 265 (1993). 

In addition, it appears that the veteran signed the VA Form 9 
on April 1, 1996, prior to the expiration of the 60-day 
period from the date of mailing of the statement of the case.  
However, it is the date of receipt by the RO of the veteran's 
VA Form 9 that is controlling, and in this instance, he 
simply did not mail or deliver it in time.  On the basis of 
the foregoing, VA may assume that the veteran was aware of 
the determinations made by the RO, and his allegations of 
non-receipt, standing alone, are insufficient to rebut the 
presumption of regularity in the VA's mailing process.  Jones 
v. West, 12 Vet. App. 98, 102 (1998); YT v. Brown, 9 Vet. 
App. 195, 199 (1996); Mindenhall v. Brown, 7 Vet. App. 271, 
274 (1994).  Finally, the record reflects that copies of the 
decisions and notifications were provided to the veteran's 
accredited representative, who was authorized to act on the 
veteran's behalf, but who also neglected to file a 
Substantive Appeal within the allotted time period.  

To the extent that the veteran has asserted that he was 
homeless after he left his girlfriend, the Board points out 
that, the duty to assist is not a one-way street.  In the 
normal course of events, it is the burden of the veteran to 
keep VA apprised of his whereabouts.  If he does not do so, 
there is no burden on VA to "turn up heaven and earth" to 
find him.  Hyson v. Brown, 5 Vet. App. 262 (1993).  There is 
no indication in the record that the veteran informed VA that 
he had moved from his prior residence or that he was 
"homeless."  Furthermore, the Board again points out that 
the veteran signed his Substantive Appeal on April 1, 1996.  
Accordingly, it may be assumed that he was aware of the 
determinations that had been made by the RO, regardless of 
his housing situation.  

In summary, in a case where the veteran's Substantive Appeal 
was filed more than 60 days from the date that the RO mailed 
the SOC to him, and more than one year from the date the RO 
mailed notification of its decision to him, and where no 
timely request for extension of time was filed, the 
Substantive Appeal must be considered "untimely."  
Accordingly, the veteran is statutorily barred from appealing 
the January 1995 RO decision on the issues of entitlement to 
service connection for a disability manifested by dizziness 
and service connection for ulcers, gastritis, right and left 
knee disorders, carpal tunnel syndrome, and chronic fatigue 
syndrome, and the Board may not reach the merits of the 
claims, but must dismiss the appeals.  See Roy, supra.  This 
action in no way prevents the veteran from reopening his 
claims with new and material evidence in an attempt to 
establish service connection for the claimed disabilities, or 
his attempt to establish service connection for some of these 
conditions as manifestations of an undiagnosed illness.  


ORDER

The appeals as to the claims for entitlement to service 
connection for a disability manifested by dizziness and 
service connection for ulcers, gastritis, right and left knee 
disorders, carpal tunnel syndrome, and chronic fatigue 
syndrome, denied by the RO in January 1995, are dismissed.


REMAND

Additional evidence was received in support of the veteran's 
claim pertaining to anemia which has not been addressed by 
the RO.  In addition, the veteran has not submitted waiver of 
RO review of this additional evidence.  Therefore, this 
matter is not ripe for appellate review.

Further action by the RO is also necessary with respect to 
the issue of whether new and material evidence has been 
presented to reopen a claim for service connection for 
anemia, and the underlying issue of whether finality should 
attach to the RO's denial of service connection for iron 
deficiency anemia effected through its rating decision of 
January 1995.  The former was the subject of the Board's 
prior remand in October 1999, wherein the Board noted that 
its jurisdiction was founded on the RO's denial of a claim to 
reopen for service connection for anemia in a supplemental 
statement of the case in September 1996.  Also, the Board 
noted that the RO had styled one of the issues then under 
review as a claim for service connection for anemia or other 
chronic disability to account for fatigue and found that, in 
actuality, two separate claims had been advanced, one for 
service connection for anemia, and the other for service 
connection for fatigue or chronic fatigue syndrome.

It nonetheless appears that there remains a pending appeal 
with respect to the question of whether a timely Substantive 
Appeal was filed by the veteran regarding the denial of 
service connection for iron deficiency anemia that was 
effectuated by the RO on January 5, 1995, notice of which was 
provided to him by the RO's correspondence of January 10, 
1995.  The NOD was received on January 8, 1996, and a SOC was 
issued on February 2, 1996.  A Substantive Appeal was not 
thereafter received by the RO prior to April 30, 1996.  While 
the RO in its SSOC of September 1996 finalized the January 
1995 denial of service connection for anemia, it did so 
prematurely and without regard to the pending appeal.  

Moreover, the legal framework set forth in the February 1996 
SSOC for determining the existence of new and material 
evidence, which was in effect at that time, has since 
changed.  See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) 
(rejecting the test for determining the materiality of 
evidence originally set forth in Colvin v. Derwinski, 1 Vet. 
App. 171 (1991) that evidence was deemed "material" when 
there was a reasonable possibility that the additional 
evidence presented, when viewed in the context of all the 
evidence, both new and old, would change the outcome of the 
claim) in favor of the test outlined in 3.156(a)); see also 
Elkins v. West, 12 Vet. App. 209 (1999) (en banc); VCAA.  
Although notice of the correct standard was provided to the 
veteran in an SSOC of August 2000, the existence of a change 
in the governing legal authority was not therein noted, which 
may have led to confusion on the veteran's part.  

Further development is also deemed to be in order regarding 
the veteran's claim for service connection for anemia as an 
undiagnosed illness, inasmuch as the Board is required to 
consider all bases under which a claim may be allowed. 

Under the VCAA, further notice and development actions are 
deemed to be necessary to ensure compliance with the VA's 
duty-to-assist obligation.  Accordingly, the case is REMANDED 
to the RO for the following actions:  

1.  The RO should contact the veteran in 
writing for the purpose of advising him 
of the laws and regulations governing the 
issue of the timeliness of appeal of the 
RO's denial in January 1995 of his claim 
for service connection for anemia, to 
include the evidence needed to 
substantiate his claim that he timely 
perfected his appeal of that denial.  The 
RO should also advise the veteran of his 
right to submit any additional argument 
and/or evidence in support of the 
timeliness of appeal issue.  Such 
evidence may be of a lay or medical 
variety.

2.  The RO should also undertake a review 
of the claims file and ensure that all 
notification and development actions 
required by the VCAA are completed in 
terms of the timeliness of appeal issue.  
In particular, the RO should ensure that 
the new notification requirements and 
development procedures contained in 
sections 3 and 4 of the Act (to be 
codified as amended at 38 U.S.C. §§ 5102, 
5103, 5103A, and 5107) are fully complied 
with and satisfied.  This should include 
following the instructions for the 
initial processing of a Gulf War Claim as 
set forth in VA's Adjudication Procedures 
Manual (M21).

3.  Thereafter, the RO should initially 
consider the issue of the timeliness of 
the veteran's appeal of a rating decision 
entered by the RO on January 5, 1995, 
denying entitlement to service connection 
for iron deficiency anemia, to include 
the question of whether such appeal was 
timely perfected.  In the event that it 
is determined that a timely appeal of the 
January 1995 denial was not perfected, 
then the RO should prepare and furnish to 
the veteran and his representative an 
SSOC which should include a summary of 
the evidence and applicable law and 
regulations considered pertinent to the 
issue currently on appeal.  An 
appropriate period of time should then be 
allowed for a response.  The veteran and 
his representative are advised of the 
need to file a substantive appeal to this 
matter if they wish the Board to address 
this issue.

4.  In the event that the RO determines 
that no timely appeal of the January 1995 
denial of service connection for anemia 
was perfected, then the RO must in 
connection with the subsequently filed 
claim to reopen for service connection for 
anemia review the claims file and ensure 
that all notification and development 
actions required by the VCAA are 
completed.  Such should also be 
accomplished with respect to the veteran's 
original claim for service connection for 
anemia as an undiagnosed illness.  In 
particular, the RO should ensure that the 
new notification requirements and 
development procedures contained in 
sections 3 and 4 of the Act (to be 
codified as amended at 38 U.S.C. §§ 5102, 
5103, 5103A, and 5107) are fully complied 
with and satisfied.  

5.  The RO should then contact the 
veteran in writing for the purpose of 
advising him of the evidence needed to 
substantiate his claim to reopen for 
service connection for anemia, and his 
separate claim for service connection for 
anemia as an undiagnosed illness, 
including medical opinions as to 
diagnoses, causes, and onset of date of 
disability, and/or lay statements by 
witnesses, family members, or others.  
The RO should also advise the veteran of 
his right to submit any additional 
argument and/or evidence in support of 
such claims.  Such evidence may be of a 
lay or medical variety, including but not 
limited to copies of service medical or 
personnel records he may hold in his 
possession; statements from service 
medical personnel; "buddy" certificates 
or affidavits from fellow service 
persons; employment or retirement 
physical examinations; medical evidence 
from hospitals, clinics and private 
physicians by which or by whom the 
veteran may have been treated; letters 
written during service; photographs; 
pharmacy prescription records; or 
insurance examinations.  Such evidence 
should be relevant to the question of the 
service incurrence or aggravation of 
anemia as a primary disorder, or anemia 
as a manifestation of an undiagnosed 
illness.

6.  In addition, the veteran should be 
contacted for the specific purpose of 
requesting that he provide a listing of 
the names and addresses of those VA and 
non-VA medical professionals who have 
evaluated and/or treated him for anemia 
before, during, and after his discharge 
from military service.  The approximate 
dates of any such evaluation or treatment 
should also be provided, to the extent 
possible.  

Thereafter, the RO should, after 
obtaining proper authorization, obtain 
all records not already on file which are 
referenced in connection with the 
aforementioned request.  All VA treatment 
records, not already on file, including 
all those compiled since 1998, must be 
obtained regardless of whether in fact 
the veteran responds to the foregoing 
request.  Such records, once obtained, 
must then be added to the claims folder.

7.  Upon the completion of the foregoing 
development, the RO should adjudicate the 
question of whether new and material 
evidence has been presented to reopen the 
veteran's previously denied claim of 
entitlement to service connection for 
anemia, on the basis of all the evidence 
on file and all governing legal 
authority, including the VCAA.  In the 
event that new and material evidence is 
found to have been submitted to reopen 
the claim, then the RO should initiate 
those actions in the indented paragraphs 
which follow.  If new and material 
evidence is not found to have been 
presented, the veteran and his 
representative should be provided with a 
supplemental statement of the case which 
should include a summary of the evidence 
and applicable law and regulations 
considered pertinent to denial of the 
claim to reopen.  An appropriate period 
of time should then be allowed for a 
response, before the record is returned 
to the Board for further review.  

8.  The veteran is then to be afforded a 
VA medical examination for the purpose of 
determining the nature and etiology of 
the veteran's anemia in connection with 
his original claim for service connection 
for anemia as due to an undiagnosed 
illness, and with respect to any claim 
reopened for service connection for 
anemia.  The veteran's claims folder in 
its entirety, including a copy of this 
remand, is to be furnished to the 
examiner prior to any evaluation of the 
veteran for use in the study of this 
case.  Such examination is to include a 
review of the veteran's history and 
current complaints, as well as a 
comprehensive clinical evaluation.  Any 
indicated diagnostic studies must also be 
accomplished if deemed warranted by the 
examiner.  All diagnoses are then to be 
fully set forth.

It is requested that the examining 
physician offer a professional opinion, 
with full supporting rationale, as to 
each of the following:

(a)  Does the veteran currently 
have chronic anemia?  If yes, 
please note whether there is 
present primary anemia or, in 
the alternative, whether anemia 
is shown to be present as a 
manifestation of some other 
disorder.  A listing of all 
relevant clinical 
manifestations and pertinent 
laboratory findings is 
required.  

(b)  If the veteran currently 
has chronic, primary anemia, is 
it at least as likely as not 
(50/50) that the current 
condition had its onset in 
service, or is otherwise 
related to the veteran's 
military service?  If not, when 
did the condition first become 
manifest?  The examiner should 
also note for the record 
whether he agrees or disagrees 
with the opinion set forth by 
Dr. Bash in January 2001, and 
explain the rationale for 
his/her statement.  

(c)  Is it at least as likely as not 
(50/50) that the veteran's anemia, 
if any, is the result of an 
undiagnosed illness suffered as a 
result of service in Southwest Asia?  

Use by the examiner of the 
italicized standard of proof in 
formulating each response is 
requested.  

9.  Following the completion of the 
foregoing actions, the RO should review 
the examination report.  If the report is 
not in complete compliance with the 
instructions provided above, appropriate 
action should be taken to return such 
examination for any and all needed 
action.  

10.  Lastly, the RO should adjudicate the 
issue of the veteran's entitlement to 
service connection for anemia as an 
undiagnosed illness, and, as applicable, 
the reopened claim for service connection 
for anemia, based on all the evidence 
presented and all governing laws and 
regulations.  If the determination 
remains adverse to the veteran, he and 
his representative should be issued an 
SSOC and afforded a reasonable 
opportunity to respond.  The veteran and 
his representative are advised of the 
need to file a substantive appeal to the 
Gulf War issue if the Board is to address 
this matter.  

Thereafter, the case should be returned to the Board, if in 
order.  The Board intimates no opinion as to the ultimate 
outcome of this case.  The veteran need take no action unless 
otherwise notified; however, he is advised that he has the 
right to submit additional evidence and argument on the 
matter that has been remanded to the RO.  Kutscherousky v. 
West, 12 Vet. App. 369 (1999).  

This claim must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board or Court for additional development or other 
appropriate action must be handled in an expeditious manner.  
See The Veterans' Benefits Improvements Act of 1994, Pub. L. 
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. 
§ 5101 (West Supp. 2000) (Historical and Statutory Notes).  
In addition, VBA's Adjudication Procedure Manual, M21-1, Part 

IV, directs the ROs to provide expeditious handling of all 
cases that have been remanded by the Board and the Court.  
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.



		
	Iris S. Sherman
	Member, Board of Veterans' Appeals