Citation Nr: 1237407	
Decision Date: 11/01/12    Archive Date: 11/09/12

DOCKET NO.  08-38 545	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1. Entitlement to a higher initial rating for hairy cell leukemia than the noncompensable (zero percent) rating assigned. 

2. Entitlement to an effective date prior to July 30, 2004, for service connection for hairy cell leukemia. 

3. Entitlement to service connection for a heart condition to include status post pacemaker implantation and atrial fibrillation, including secondary to hairy cell leukemia. 


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs



WITNESSES AT HEARING ON APPEAL

Appellant and E.V.


ATTORNEY FOR THE BOARD

D. Schechter, Counsel 


INTRODUCTION

The Veteran served on active military duty from September 1966 to April 1969. 

The appeal comes before the Board of Veterans' Appeals (Board) from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, granting service connection for hairy cell leukemia, assigning an effective date of July 30, 2004, and assigning an initial disability rating of zero percent. By a September 2008 decision, the RO issued a correction of an apparent subsequent administrative error, and the RO by that September 2008 decision thereby confirmed the previously assigned effective date of July 30, 2004, for service connection for hairy cell leukemia. The zero percent initial rating remained unchanged. 

The appeal also arises from an August 2008 RO decision which in pertinent part denied service connection for a heart condition to include status post pacemaker implantation and atrial fibrillation. 

The Board in June 2012 requested Veterans Health Administration (VHA) examiner opinion, and this was obtained in July 2012 and associated with the claims file. The appealed claims now return to the Board for review. 

The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing conducted at the RO in March 2012. A transcript of the hearing is of record. 


While the Veteran had initiated appeals of claims for service connection for stress and/or anxiety, a skin condition (purpura cutanea tarda), night sweats, and weight gain, by a signed statement in February 2012 the Veteran clarified that he was withdrawing his appeals as to those claims. The Veteran and his authorized representative reaffirmed that they were dropping those claims at the Veteran's March 2012 Travel Board hearing before the undersigned. Though a claim generally remains open until a final action on the claim, once a claim is withdrawn it no longer exists.  Hanson v. Brown, 9 Vet. App. 29 (1996). Thus regardless of their previous appellate posture, those claims are no longer for appellate consideration by the Board.

The issue of entitlement to service connection for a heart condition to include status post pacemaker, implantation and atrial fibrillation, including secondary to hairy cell leukemia, and entitlement to a compensable initial rating for hairy cell leukemia are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

The Veteran did not submit a formal or informal claim for service connection for hairy cell leukemia prior to July 30, 2004.


CONCLUSION OF LAW

The criteria for entitlement to an effective date prior to July 30, 2004, for a grant of service connection for hairy cell leukemia have not been met. 38 U.S.C.A. §§ 5101(a), 5110(b)(3) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.151(a), 3.155(a), 3.400 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. The Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187   (2002); Charles v. Principi, 16 Vet. App. 370, 373-74   (2002). 

These VCAA notice requirements apply to all elements of a service-connection claim, including the downstream disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473   (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311   (2007).

The appealed issue adjudicated herein is one of effective date for service connection for hairy cell leukemia, which is downstream of the claim for service connection for hairy cell leukemia, arising as it does from the Veteran's disagreement with the effective date assigned with the grant of service connection for hairy cell leukemia. VCAA notice concerning this downstream effective date element of the service connection claim is not required. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). The courts have held that, where the underlying claim for service connection has been granted and there is disagreement regarding a downstream issue, such as effective date of service connection, the claim as it arose in its initial context has been substantiated and there is no need to provide additional VCAA notice concerning the downstream issue. Goodwin v. Peake, 22 Vet. App. 128, 134 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) concerning the downstream issue if the disagreement is not resolved, which SOC the Veteran received in September 2008 citing the applicable statutes and regulations governing the assignment of an effective date for service connection and discussing the reasons and bases for not assigning an earlier effective date in this case.

VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim for an earlier effective date for service connection for hairy cell leukemia. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. No examination or obtaining of additional medical records is warranted to address the issue of earlier effective date in this case, because the question of effective date here turns on dates of receipt of formal and informal claims, so that no medical evidence can change the outcome. The question presented is one of effective date for service connection, and the applicable regulations dictate that the effective date for service connection shall be the date of receipt of claim or the date at which entitlement arose, whichever is later, except that an effective date corresponding to the date of receipt of an informal claim shall be assigned if a formal claim is subsequently timely received. 38 C.F.R. §§ 3.150(a), 3.151(a), 3.155(a), 3.400(a). Because the RO has in this case assigned as the effective date the date of receipt of the earliest informal claim (for which a formal claim was subsequently timely received), as discussed infra, medical evidence is not implicated in the effective date issue as presented on appeal. 

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. 3.103(c)(2) (2010) requires that any Veterans Law Judge who chairs a hearing fulfill two duties to comply with the VCAA. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant, 23 Vet. App. at 488. The Board finds that to the extent the undersigned Veterans Law Judge failed to fulfill these two duties at the March 2012 hearing, the Veteran was not prejudiced thereby, because by his submitted statements and by arguments at the hearing, the Veteran and his authorize representative amply demonstrated understanding of the issues involved in the claim for an earlier effective date for service connection for hairy cell leukemia, and understanding of what evidence would support the claim. As discussed infra, the Veteran and his representative made arguments as to their satisfaction of requirements for an earlier effective date for service connection, and also addressed such evidence as would be needed to support the claim, thus demonstrating both knowledge of the issues and of the evidence required to support the claim, even while they ultimately failed to meet satisfy the requirements and lacked such evidence as would allow them to prevail in the claim. 


II Claim for Earlier Effective Date for Service Connection
For Hairy Cell Leukemia  

"A specific claim in a form prescribed by the Secretary (or jointly with the Secretary of Health and Human Services, as prescribed by section 5105 of this title) must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary." 38 U.S.C.A. § 5101(a). 

The effective date for service connection shall be the earlier of the date of receipt of claim or the date at which entitlement arose, whichever is later. 38 C.F.R. § 3.400. A claim is defined by regulation as "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). Any communication or action that demonstrates intent to apply for an identified benefit may be considered an informal claim, except that the communication must identify the benefit sought. 38 C.F.R. § 3.155(a). 38 C.F.R. § 3.1(p) defines application for a benefit as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). 

VA is required to identify and act on informal claims for benefits. 38 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). See also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Upon receipt of an informal claim for benefits, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.150. If the formal claim is then received within one year of the date the appropriate form was sent to the claimant, it will be considered filed on the date of receipt of the informal claim. 38 C.F.R. §§ 3.151(a), 3.155(a). 

An informal claim for service connection for hairy cell leukemia (subsequently judged to have been formalized) was first received on July 30, 2004, and upon grant of service connection for hairy cell leukemia, the RO assigned an effective date for service connection of July 30, 2004. (While there was subsequently some confusion or error on the part of the RO as to the effective date to be assigned, this was resolved with the confirmed assignment of an effective date of July 30, 2004, by a September 30, 2008 rating action). Thus, July 30, 2004 is the presently assigned effective date for service connection for hairy cell leukemia. 38 C.F.R. §§ 3.151(a), 3.155(a), 3.400.

In a September 2008 submitted statement, the Veteran argued, "[T]he diagnosis date should be the effective date [for service connection] as I contacted the local Klamath County Veterans Service office to file a claim in October 1999 and got the information and submitted it in May of 2000." The Veteran thus appears to contend that he submitted in May 2000 evidence of the diagnosis of hairy cell leukemia, and thus established a claim. However, the claims file contains no evidence, beyond the Veteran's or his representative's unsubstantiated assertions, of submission of any medical or other evidence or information to support a claim for service connection for hairy cell leukemia prior to the July 30, 2004, date of receipt of an informal claim for service connection for hairy cell leukemia. The Veteran may thus be attempting to conflate submitting evidence to the Oregon Department of Veterans Affairs with submission of evidence to VA. However, the date of receipt of an informal claim is of necessity the date of such receipt by VA, not the date of receipt by an authorized representative. 38 C.F.R. § 3.1(r). 

The Veteran in a December 2008 statement argued, "I do not believe I should be held responsible" for his authorized representative not filing his claim in 2000. The Veteran contended, in effect, that he appointed an authorized representative to represent him before VA in 2000 and then also provided to that authorized representative evidence to support a claim for service connection for hairy cell leukemia, and the Veteran's claim for service connection for hairy cell leukemia should thus be considered as having been filed then notwithstanding any failure on the part of the authorized representative to follow through and file the formal or informal claim. However, regardless of the Veteran's perception of his personal responsibility in this case, the claimant bears the burden of presenting and supporting his claims for benefits. 38 U.S.C.A. § 5107(a); see Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). Thus, the Veteran's earlier effective date claim cannot be supported by any contention that an authorized representative's failure to file a claim should permit an earlier effective date for service connection as if the authorized representative had properly filed a claim. Once again, the regulation defining a formal or informal claim as one received by VA governs. 38 C.F.R. § 3.1(r).

At his March 2012 Travel Board hearing before the undersigned, the Veteran's authorize representative contended that the Veteran filed a claim for hairy cell leukemia on "30 May 2000" which the VA acknowledged but never acted on. (hearing transcript, pg. 3). The Board has thoroughly reviewed the record, but finds no record of any filing or submission in 2000 or of VA's acknowledgement in 2000 of any filing or submission. Rather, documents within the claims file include a declaration of marital status filed in the early 1970s, and no subsequent document filed by the Veteran or by any other party on the Veteran's behalf prior to the filing of an informal claim for service connection for hairy cell leukemia on July 30, 2004. 

The VA applies a presumption of regularity in administrative processes "in the absence of clear evidence to the contrary." Ashley v. Derwinski, 2 Vet. App. 64-65 (1992).  Thus, VA presumes that if the Veteran or an authorized representative filed a formal or informal claim for benefits or filed evidence supportive of such a formal or informal claim, these would have been associated with the Veteran's claims file and would remain with the claims file. Id. The Veteran asserts that an informal claim was filed in May 2000, but there is no record of receipt of a claim in May 2000 associated with the claims file. Because claim filed in May 2000 and no record of a claim filed in May 2000 is associated with the claims file, it is presumed that none was filed, in the absence of clear evidence to the contrary. Id. 

The Veteran has submitted no such clear evidence to the contrary. Rather, he has only presented his own statements and VA Form 21-22, which was not associated with the claims file until January 2007 when submitted with a notice of disagreement.  

While the Veteran has contended that the VA Form 21-22 was submitted in May 2000, the copy of a VA Form 21-22 contained within the claims file is date stamped by a non-VA entity, purportedly the Oregon Department of Veterans Affairs, in May 2000, and is not noted as received by VA until January 2007. Once again, the presumption of regularity precludes VA from concluding that the VA Form 21-22 was received by VA prior to January 2007, in the absence of acknowledgment of such receipt by VA on the form. Ashley. The Veteran has failed to submit evidence sufficient to rebut that presumption of regularity. 

A claimant's own statements cannot meet the criteria of clear evidence to rebut the presumption of regularity. See Butler v. Principi, 244 F.3d. 1337, 1340   (Fed. Cir. 2001). The copy of the VA Form 21-22 received in January 2007 also does not meet the requirement of clear evidence to rebut the presumption that, because no informal claim filed in May 2000 is documented in the claims file, an informal claim was not filed in May 2000. Rather, because the VA Form 21-22 must be found, in the absence of overcoming the presumption, to have been received in January 2007, the Board finds that this copy of a VA Form 21-22 is not clear evidence of an informal claim having been filed prior to July 30, 2004. Rather, it is only evidence apparently supportive of the Veteran having completed the form in May 2000 to appoint the Oregon Department of Veterans Affairs, without that form having been filed with VA prior to July January 2007.  

The Veteran has also presented no additional evidence to support the contention of an informal claim for service connection for hairy cell leukemia having been submitted prior to July 30, 2004. 

In the absence of clear evidence to the contrary, the Board finds that the applicable presumptions of regularity have not been rebutted in this case, allowing the Board to conclude that an informal claim for service connection for hairy cell leukemia was not submitted in May 2000, or at any time prior to July 30, 2004. Ashley. 

Because July 30, 2004, is the earliest date at which an informal claim for service connection for hairy cell leukemia was received, and because service connection for hairy cell leukemia has already been assigned effective from that date, the preponderance of the evidence is against assignment of an earlier effective date for service connection for hairy cell leukemia than July 30, 2004. 38 C.F.R. §§ 3.151(a), 3.155(a), 3.400. 

Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

An earlier effective date for service connection for hairy cell leukemia than July 30, 2004, is denied. 


REMAND

The Board in June 2012 requested a Veterans Health Administration (VHA) examiner opinion as to the nature, extent, and etiology of the Veteran's heart disabilities. As revealed by review of treatment records contained within the claims file, and as addressed by the VHA examiner in July 2012, the Veteran's claimed heart condition status post atrial fibrillation and pacemaker implantation consists of persistent atrial fibrillation currently with mostly paced rhythm. Examiners have noted that this was revealed by pacemaker interrogation in 2011. The Veteran was also noted to have hypertension and hypertensive heart disease with mild to moderate left ventricular hypertrophy without significant valvular heart disease, which the VHA examiner noted was usually caused by poorly treated hypertension. The examiner also noted that the Veteran had heart failure identified in a December 2007 clinical note which had normalized with medical therapy. The examiner further observed an echocardiogram in 2002 reflecting a 40 percent left ventricular ejection fraction. 

Additionally, the VHA examiner noted that while the Veteran had undergone an adenosine SPECT nucleotide stress test in December 2007, the METs score of 2 as recorded on this test did not assess the Veteran's functional capacity, but rather was only to predict the likelihood of underlying coronary artery disease. In contrast, the examiner noted that an exercise stress test was performed in January 2003 when 78 percent of maximum predicted heart rate was achieved. 

While the VHA examiner noted that it was likely based on a May 2002 clinical note of findings of decreased tracer uptake in the inferior wall that the Veteran had had a small myocardial infarction in May 2002, the examiner also noted that this appeared to have been without any significant lasting heart muscle damage. 

The case thus presents significant questions as to current cardiac dysfunction, and the extent of any current cardiac disability, including the extent of the currently service-connected arteriosclerotic coronary artery disease status post  myocardial infarction, and the extent of any other cardiac disability which may be the subject of the presently appeal claim for service connection. The parameters of the current service-connected disability must of necessity dictate what remaining cardiac disability may be within the scope of the Veteran's claim for service connection for a heart condition to include status post pacemaker  implantation and atrial fibrillation. 

The VHA examiner opined that there was no medical basis for the Veteran's service-connected hairy cell leukemia to have caused or aggravated current heart disease, because there was no medical literature reflecting prospective studies to that effect. However, in March 2012 hearing testimony before the undersigned, the Veteran had not argued that hairy cell leukemia itself had caused his heart disease, but rather that worry about the leukemia had, in effect, aggravated his heart disability. Such a psychogenic component thus may potentially be implicated in the absence of any medical evidence of a link between the cancer itself and the claimed heart disease, just as an anxiety disorder with no precipitating physical ailment whatsoever may be asserted as causing or aggravating a physical ailment. 

However, such a basis of claim requires consideration of an implied claim for service connection for the anxiety disorder which is contended to be caused or aggravated by the hairy cell leukemia, and in turn to be impacting cardiac disability. The RO by an August 2008 rating action denied service connection for stress and/or anxiety as secondary to service-connected hairy cell leukemia, or alternatively as due to weight gain in service. The Veteran's March 2012 testimony thus includes an implied request to reopen a claim for service connection for an anxiety disorder.

That implied request to reopen that claim is inextricably intertwined with the claim for service connection for heart disability. The Board observes that the Veteran failed to appeal the claim for service connection for an anxiety disorder denied by the RO in an August 2008 rating action, while the Veteran did appeal from that August 2008 rating action the claim now before the Board for service connection for a heart condition manifested by atrial fibrillation and pacemaker implantation. Nonetheless, the inextricably intertwined implied request to reopen a claim for service connection for an anxiety disorder must be address in the first instance by the RO, and hence it is also the subject of the present remand, to avoid piecemeal adjudication. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 

Regarding the Veteran's hairy cell leukemia higher initial rating claim, the Veteran's hairy cell leukemia is appropriately rated under diagnostic code 7703, for leukemia. That code informs that a 100 percent rating will be assigned for active disease or during treatment, and "[o]therwise rate as anemia (code 7700) or aplastic anemia (code 7716), whichever would result in the greater benefit." 38 C.F.R. § 4.117, Diagnostic Code 7703. A note following Diagnostic Code 7703 informs: 

The 100 percent rating shall continue beyond the cessation of any surgical, radiation, antineoplastic chemotherapy or other therapeutic procedures. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of [38 C.F.R.]§ 3.105(e) of this chapter. If there has been no recurrence, rate on residuals.

Id. 

Because the Veteran had not submitted an informal claim for benefits which he subsequently formalized prior to July 30, 2004, and because the medical record reflects that the hairy cell leukemia became in remission multiple years prior to July 30, 2004, a VA benefits examination was necessarily not afforded the Veteran six months following discontinuance of treatment. The Veteran was afforded a VA examination for compensation purposes addressing his hairy cell leukemia in May 2008. 

The May 2008 examiner noted that the Veteran received treatment for active hairy cell leukemia in September 1999, with successful shrinkage of the spleen as shown by CT examination in November 1999. The Veteran was noted to be feeling relatively well by the end of May 2000 except for fatigue and not functioning well under stress. However, in May 2000 a history of a number of past episodes of severe sweating and malaise were noted. The May 2008 examiner observed that the Veteran had been followed by treating physician Dr. B, with a last note of Dr. B within the claims file dated in October 2003, with no relapse noted. 

Because hairy cell leukemia is not reflected in the medical record to have relapsed during the initial rating interval beginning July 30, 2004, the Veteran's hairy cell leukemia is to be rated based on residuals. See Note following Diagnostic Code 7703. Unfortunately, the May 2008 VA examiner failed to address the nature of current residuals of the Veteran's hairy cell leukemia, and the Veteran has not been afforded a subsequent VA examination addressing this question. 

In a January 2007 submitted statement, the Veteran contended that he continued to experience residuals including purpura on his legs with associated burning and itching, as well as night sweats. Medical evidence is not of record to substantiate attribution of these lay-asserted symptoms to residuals of the Veteran's hairy cell leukemia. While it is true that lay statements may serve to support a claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability which may reasonably be observed by laypersons, medical substantiation of the asserted physiological condition of purpurea is warranted in this case, as is attribution to the Veteran's hairy cell leukemia. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed Cir. 2007). These assertedly secondary symptoms or conditions may also potentially be attributable to the Veteran's multiple other current medical conditions, and this too remains an unanswered question requiring medical expertise. Id. 

A compensable rating for anemia under Diagnostic Code 7700 requires Hemoglobin 10gm/100ml or less with findings such as weakness or easy fatigability. 38 C.F.R. § 4.117, Diagnostic Code 7700. A compensable rating under Diagnostic Code 7716 requires transfusions of platelets or red cells at least once per year but less than once every three months, or; infections recurring at least once per year but less than once every three months. 38 C.F.R. § 4.117, Diagnostic Code 7716. The record does not contain sufficient medical findings to ascertain whether the criteria are met for compensable residuals of the Veteran's hairy cell leukemia under these codes. 

In this case, the Board believes a retrospective examination is in order, both to address the current residuals of the Veteran's hairy cell leukemia, and to address residuals as have been present since the July 30, 2004, date of service connection for hairy cell leukemia. Chotta v. Peake, 22 Vet. App. 80 (2008) (addressing the need for a "retrospective medical opinion" to ascertain past severity of disability where a rating must be assigned for a long-ago period and insufficient evidence is presented to support rating the disability over that period).


Accordingly, the case is REMANDED for the following action:

1. The RO should appropriately address the Veteran's implied claim for service connection for an anxiety disorder including as secondary to service-connected hairy cell leukemia, affording him appropriate notice and forms required to establish a formal claim for service connection for anxiety disorder. Inform him that a claim for service connection for a heart condition to include atrial fibrillation and status post pacemaker implantation claimed as secondary to an anxiety disorder due to his service-connected hairy cell leukemia, would first require service connection for that asserted anxiety disorder. 

2. The RO should afford the Veteran a new VCAA letter which addresses bases of service connection for claimed heart condition to include atrial fibrillation and status post pacemaker implantation, including particularly the bases of the claim as secondary to claimed anxiety disorder, including theories of causation or aggravation. 

3. The RO should address any formal request received to reopen the claim for service connection for an anxiety disorder, and should adjudicate such a request to reopen and the underlying claim (if reopened) prior to affording the Veteran a VA examination addressing his cardiac disorders (pursuant to instruction 4, below). 

4. The RO should afford the Veteran a new in-person cardiac VA examination for compensation purposes to address the nature, extent, and severity of any current arteriosclerotic coronary artery disease status post myocardial infarction, and any current atrial fibrillation and/or other cardiac disability status post pacemaker implantation. The examiner should expressly address the statements and conclusions of the July 2012 VHA examiner to the effect that the Veteran did not have significant lasting heart muscle damage from a likely myocardial infarction in May 2002, and that with respect to the adenosine SPECT nucleotide stress test in December 2007, the METs score of 2 did not assess the Veteran's functional capacity, and whether this may be reconciled with the RO's assignment of a 100 percent disability rating based on this adenosine SPECT nucleotide stress test METs score. 

a. To the extent possible, the examiner should try to distinguish the nature, extent, and severity of disability attributable to the Veteran's service-connected arteriosclerotic coronary artery disease status post myocardial infarction, from that attributable to any other heart condition (distinct from the service-connected arteriosclerotic coronary artery disease status post myocardial infarction) associated with atrial fibrillation and status post pacemaker implantation. 

b. For each such heart condition identified as distinct from the service-connected arteriosclerotic coronary artery disease status post myocardial infarction, the examiner should provide a separate opinion whether it is at least as likely as not (at least 50 percent probability) that the disorder was caused or aggravated (permanently increased in severity) by his service-connected arteriosclerotic coronary artery disease status post myocardial infarction. 

c. If the Veteran is service connected for an anxiety disorder, then for each such heart condition identified as distinct from the service-connected arteriosclerotic coronary artery disease status post myocardial infarction, the examiner should provide a separate opinion whether it is at least as likely as not (at least 50 percent probability) that the disorder was caused or aggravated (permanently increased in severity) by the anxiety disorder. 

d. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is, at the least, so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.

e. A rationale should be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report. If the examiner cannot answer any question posed without resorting to unsupported speculation, the examiner must provide a complete explanation as to why this is so.

5. Thereafter, the veteran should be afforded an in-person appropriate specialist examination to address the nature and extent of residuals of the Veteran's in-remission hairy cell leukemia. The claims file must be made available to the examiner for review before the examination. In addressing the questions below, the examiners' opinions must be informed by a review of the Veteran's medical history and findings as documented upon any prior examinations or treatments. To the extent feasible, other evidence, to include lay statements, may be used to support a diagnosis or an assessment of severity. Lay statements should be considered, with due consideration of their credibility or lack of credibility based on other evidence of record or other evidence presented. Any indicated tests or studies should be conducted. The examiners should do the following: 

a. The examiner is advised that this should be a retrospective examination, to address the nature and extent of residuals of hairy cell leukemia and its treatment from 2004 up to the present. Any indicated periods of increased severity should be addressed.  

b. The examiner should specifically address the Veteran's complained-of conditions and symptoms which the Veteran attributes to these residuals, and should provide an opinion as to which conditions and symptoms are at least as likely as not residuals of the Veteran's in-remission hairy cell leukemia and its status post treatment (including effects of radiation therapy or chemotherapy). This should include whether the Veteran's asserted purpura on his legs and associated burning and itching are present, and if so whether they are attributable as residuals of hairy cell leukemia and its treatment, or alternatively idiopathic or attributable to any other disorders.

c. Review the claims file including any pertinent records of examination and treatment, lay statements, and other documents as may reflect the nature and severity of the Veteran's residuals of hairy cell leukemia and its treatment, from 2004 to the present. The examiners should expressly consider pertinent past records in the examination report.

d. The examiners should assess the level of functional impairment of due to the identified residuals (if any), including particularly their impact on work and work-like functioning. 

e. To the extent possible, also address the extent of additional disability or impairment in functioning during episodes of flare-up (if any), and the frequency and duration of these episodes. 

f. A rationale must be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report. 

6. Thereafter, the RO should readjudicate de novo the Veteran's claim for service connection for a cardiac condition associated with atrial fibrillation and status post pacemaker implantation, including on secondary bases, and his claim for a higher initial evaluation for hairy cell leukemia. If either of these benefits is not granted to the Veteran's satisfaction, provide him and his representative with a Supplemental Statement of the Case (SSOC) and an appropriate opportunity to respond.

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. 2011).




______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs