Citation Nr: 1117215 Decision Date: 05/04/11 Archive Date: 05/10/11 DOCKET NO. 10-13 601A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for polycythemia, claimed as secondary to the service-connected residuals of a transsphenoidal hypophysectomy of a pituitary tumor. 2. Entitlement to service connection for hypertension, claimed as secondary to the service-connected residuals of a transsphenoidal hypophysectomy of a pituitary tumor. [The claims of entitlement to an initial evaluation in excess of 20 percent for limitation of motion of the lumbar spine with scoliosis for the period prior to July 8, 2003; a higher initial evaluation for degenerative disc disease of the cervical spine; and increased ratings for residuals of a transsphenoidal hypophysectomy of a pituitary tumor and sinusitis are addressed in a separate Board decision.] ATTORNEY FOR THE BOARD A. C. Mackenzie, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to March 1975, from December 1975 to December 1979, and from October 1983 to August 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In December 2009, the Board remanded the claims for higher initial ratings for organic brain syndrome and postoperative residuals of an incisional hernia for additional development. This case has been returned to the Board on account of other pending issues, and it appears that the RO has not yet had adequate time and opportunity to complete the development and readjudication requested in that remand. The Board thus does not find any shortcomings on the part of the RO in light of 38 C.F.R. §§ 19.9 and 19.31 (2010) or Stegall v. West, 11 Vet. App. 268 (1998) but would remind the RO that the remand orders from December 2009 do await completion. In a January 2011 response to a Board inquiry, the Veteran emphasized that the attorney who has been representing him on the issues addressed in the separate and simultaneously issued Board decision is not representing him in conjunction with the above issues. Rather, he indicated that he was representing himself and would most likely seek counsel only if "these claims eventually require filing an appeal" with the United States Court of Appeals for Veterans Claims (Court). A March 2010 notice letter addresses claims for service connection for carpal tunnel syndrome secondary to a pituitary tumor and posttraumatic stress disorder and for clear and unmistakable error in the effective date assigned for service connection for tinnitus, but these claims have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The requirement that a current disability be present is satisfied when a claimant has a disability: 1) at the time a claim for VA disability compensation is filed, or 2) during the pendency of that claim, even though the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Veteran. App 319 (2007). In the present case, the Veteran's formal claim for service connection for polycythemia was received in December 2007. A review of the claims file, however, shows that the Veteran's initial claims for service connection for an increased hemoglobin count as a result of testosterone use were received in August and November of 2005, as he submitted statements referencing this matter at those times. The Board must therefore consider the August 2005 date in determining whether a disability exists, as defined under McClain. The Board does note that private treatment records from Charles Powers, M.D., dated from May through September of 2004, contain an impression of polycythemia, and VA blood testing between November 2005 and June 2007 showed elevated hemoglobin. The Veteran's claimed polycythemia was addressed in the report of a March 2009 VA respiratory disorders examination. This examination encompassed blood testing, and the examiner did render the opinion that it was at least as likely as not that polycythemia or erythrocytosis was caused by or a result of the Veteran's testosterone medication for his service-connected pituitary adenoma, status post surgery in 1992. The examiner, however, went on to note that the Veteran "does not have a diagnosis of polycythemia vera." Rather, he had intermittent and transient elevations of his hemoglobin, correlating with polycythemia or erythrocytosis. The last such episode was in June 2007, and this laboratory finding had not required the Veteran to have any particular treatment or intervention. The laboratory abnormality could be explained by the Veteran's testosterone administration, and the examiner described a medical article addressing this effect. The examiner also cited to a report indicating that discontinuation of transdermal testosterone therapy showed complete normalization of laboratory values within nine months. Currently, the veteran was noted to have "a normal hemoglobin and hematocrit," as documented by the March 2009 laboratory findings. The Board is not satisfied that this report resolves the question of a disability in view of McClain, despite the prior diagnoses and the nexus opinion. In this regard, VA has found that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities for compensation purposes. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996). It is not sufficiently clear whether the diagnosed polycythemia, apparently representing elevations of hemoglobin, likewise constitutes a mere laboratory result. As the examiner did not adequately address the significance of the prior impression of polycythemia, further clarification is needed. As to hypertension, the Veteran has claimed that this disability has resulted from his service-connected residuals of a transsphenoidal hypophysectomy of a pituitary tumor. In support of his claim, he has furnished an August 2005 opinion from Craig Bash, M.D., indicating such a causal nexus, and this opinion was apparently based upon a review of significant portions of the evidence of record. A March 2009 VA respiratory examination report contains an opinion suggesting the contrary; while this opinion was based upon a claims file review, the examiner did not address the contents of Dr. Bash's opinion. The Board thus finds this examination report to be inadequate and requiring an addendum. 38 C.F.R. § 3.159(c)(4) (2010). Accordingly, the case is REMANDED for the following action: 1. The Veteran's claims file must be returned to the March 2009 VA examiner, or another qualified medical professional, and must be reviewed in its entirety. The examiner must first address conclusively whether the previously diagnosed polycythemia, as indicated in Dr. Powers's records and in the March 2009 VA examination report as previously manifested, represented only elevated laboratory results or is indicative of a chronic disability with symptom manifestations. The examiner must also must address whether it is at least as likely as not (e.g., a 50 percent or greater probability) that the hypertension: 1) was first manifested in service or within one year thereafter, or 2) was caused or permanently worsened by the service-connected residuals of a transsphenoidal hypophysectomy of a pituitary tumor. In reaching this opinion, it is essential that the favorable August 2005 opinion of Dr. Bash be addressed in full, and any contrary findings must be fully explained. All opinions must be supported by a complete rationale in a typewritten addendum. 2. Then, the claims must be readjudicated. If the determination of either claim remains unfavorable, the Veteran must be furnished with a Supplemental Statement of the Case and given an opportunity to respond. The Veteran has the right to submit additional evidence and argument on this matter. 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. 2010). ______________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2010).