Citation Nr: 1119664 Decision Date: 05/20/11 Archive Date: 05/27/11 DOCKET NO. 07-17 036A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for chronic anemia with thalassemia and chronic leukopenia. 2. Entitlement to service connection for a cervical spine disorder with degenerative changes. REPRESENTATION Veteran represented by: Lisa A. Lee, Attorney at Law ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from May 1992 to June 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This matter was remanded for further development in September 2005 and February 2010. Unfortunately, the Board finds that another remand is necessary in order to comply with due process requirements. Therefore, the appeal is again REMANDED to the VA RO. VA will notify the Veteran if further action is required. REMAND Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that she is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c), (d) (2010). Regarding the Veteran's claim for service connection for chronic anemia with thalassemia and chronic leukopenia, the Board notes that in its February 2010 remand it ordered a VA examiner to identify all current disabilities underlying the Veteran's current complaints of anemia and the likely etiology of the disease. It then asked the examiner to opine (1) whether it is at least as likely as not that any such disability either had its onset in service, or is the result of disease or injury incurred or aggravated during active service, to specifically include the in-service findings of anemia during pregnancy in April 1993 and (2) whether chronic anemia was manifested within the Veteran's first post-service year and, if so, what the manifestations of such disease were. The July 2010 VA examiner diagnosed the Veteran with anemia in remission and opined that the Veteran did not have symptoms secondary to anemia while in the military. However, a February 1993 service treatment record showed an assessment of iron-deficient anemia and that the Veteran was urged to start taking iron pills. The VA examiner also did not address whether the Veteran's anemia during her pregnancy while in military service was related to her current anemia disability. Furthermore, the VA examiner failed to directly answer the question of whether chronic anemia was manifested within the Veteran's first post-service year and, if so, what the manifestations of such disease were. Concerning the claim for service connection for a cervical spine disorder with degenerative changes, the Board notes that in its February 2010 remand it ordered a VA examiner to identify all current disabilities underlying the Veteran's current complaints of neck pain and the likely etiology of the disability or injury. It then asked the examiner to opine whether it is at least as likely as not that any such disability either had its onset in service, or is the result of disease or injury incurred or aggravated during active service, to specifically include the Veteran's alleged in-service injury while digging a foxhole during basic training. The July 2010 VA examiner diagnosed the Veteran with cervical spine degenerative joint disease and opined that such was less likely as not a result of military service because it appeared to the VA examiner that, even though the Veteran was diagnosed with cervical myositis while in the military, she did not have a chronic problem with her cervical spine condition until 1996, some three years after service, when her neck was injured in a motor vehicle accident. However, the VA examiner failed to specifically discuss the Veteran's alleged in-service injury while digging a foxhole during basic training (see report of July 2003 VA examination). As explained above, the July 2010 VA examiner failed to answer several of the Board's inquiries concerning these two claims now on appeal. The United States Court of Appeals for Veterans Claims has held that a remand by the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In view of the Stegall violations, the Board finds that additional development is required prior to appellate review. On remand, the agency of original jurisdiction (AOJ) should return the claims file to the July 2010 VA examiner, if possible, in order for the examiner to complete an addendum fully answering the questions posed in the Board's February 2010 remand. If the July 2010 reviewer is unavailable, then the AOJ should schedule the Veteran for a new VA examination pertaining to both claims. Accordingly, the case is REMANDED for the following action: 1. The claims file should be returned to the July2010 VA examiner for an addendum opinion. If the examiner is unavailable, or determines that the opinions requested cannot be rendered without an examination, the Veteran should be scheduled for an appropriate examination in order to determine the current nature and etiology of her anemia and cervical spine disorder. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examiner is requested to offer an opinion on the following: (A) (1) Whether it is at least as likely as not that any anemia disability is related to the Veteran's military service, to specifically include the in-service findings of anemia during pregnancy in April 1993. (2) Whether chronic anemia manifested within the Veteran's first post-service year (June 1993 to June 1994) and, if so, what the manifestations of such disease were. The examiner should reconcile any opinion with the service treatment records, and with the post-service treatment records in the claims file. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding the incurrence of her anemia and the continuity of symptomatology. The rationale for any opinion offered should be provided. (B) Whether it is at least as likely as not that any neck disability is related to the Veteran's military service, to specifically include her in-service injury while digging a foxhole during basic training. The examiner should reconcile any opinion with the service treatment records and post-service treatment records in the claims file-including those of the February 1996 motor vehicle accident. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding the incurrence of her cervical spine disorder and the continuity of symptomatology. The rationale for any opinion offered should be provided. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and her attorney should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). _________________________________________________ A. JAEGER 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).