Citation Nr: 1237892 Decision Date: 11/05/12 Archive Date: 11/09/12 DOCKET NO. 99-14 381 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for anemia, to include under the provisions of 38 C.F.R. § 3.317 ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran was a member of the Army National Guard of Puerto Rico. She had active duty service from November 1990 to April 1991. The Veteran served in the Persian Gulf from January 1991 to April 1991. The Veteran also had the following periods of active duty for training (ACDUTRA): September 12, 1992, to September 26, 1992; May 23, 1993, to June 6, 1993; July 17, 1994, to July 31, 1994; June 25, 1995, to July 9, 1995; May 26, 1996, to June 9, 1996; June 22, 1997, to July 6, 1997; June 28, 1998, to July 12, 1998; May 30, 1999, to June 13, 1999; June 3, 2000, to June 17, 2000; March 24, 2001, to April 7, 2001; June 22, 2002, to July 6, 2002; May 31, 2003, to June 14, 2003; June 26, 2004, to July 10, 2004; June 25, 2005, to July 9, 2005; June 24, 2006, to July 8, 2006; April 13, 2007, to April 15, 2007; May 26, 2007, to June 9, 2007; May 31, 2008, to June 14, 2008; May 23, 2009, to June 6, 2009; October 19, 2009, to October 21, 2009; and, October 24, 2009, to October 28, 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which denied the benefit sought on appeal. On her June 1999 Substantive Appeal (on VA Form 9), the Veteran requested a Board hearing. The hearing was scheduled for June 7, 2004. On June 3, 2004, the Veteran cancelled the hearing. To date, she has not requested a new Board hearing. Accordingly, the Board considers her hearing request to be withdrawn. 38 C.F.R. § 20.704(d) (2011). In December 2004, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. The claim was then returned to the Board for appellate disposition. In June 2009, the Board again remanded this matter to the RO via the AMC in Washington, DC, for additional development. The claim was then returned to the Board for appellate disposition. In January 2012, the Board again remanded this matter to the RO via the AMC in Washington, DC, for additional development. The claim was then returned to the Board for appellate disposition. The appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the claims can be properly adjudicated. Specifically, a remand is required to 1) obtain a VA examination and 2) attempt to obtain private treatment records. The Veteran is claiming entitlement to service connection for anemia. She asserts that such disability is due to her active duty service in the Persian Gulf (i.e., undiagnosed illnesses). Alternatively, she asserts service connection should be warranted on a direct basis, as due to her active duty and/or ACDUTRA military service. First, remand is required to obtain a VA examination. In December 2004, the Board remanded for the AMC to provide the Veteran with a Persian Gulf examination in accordance with VA's Undersecretary for Health's September 2000 Fast Letter (Fast Letter 00-68), and pursuant to the specific instructions for VA examiners as found in the revised AMIE Disability Examination Worksheets - specifically, the "Guidelines for Disability Examinations in Gulf War Veterans." However, the AMC failed to provide this examination. In January 2012 the Board again remanded for the AMC to provide the Veteran with a Persian Gulf examination. Although the Veteran was initially scheduled for such examination, the claims file reflects that she failed to report. This was listed as being due to the fact that she works as a nurse. Another examination was not scheduled and a hematologic and lymphatic conditions examination was conducted to review the Veteran's records. However, this examination was not conducted as a Persian Gulf examination. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, the Board must again remand this claim for this action to be accomplished. Id. Further, in offering the opinion that the Veteran's anemia was pre-existing service, the examiner failed to address any possible aggravation that may have occurred to this condition by the Veteran's military service, as was requested in the January 2012 Remand. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The issue of aggravation must be addressed. A Veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). A pre-existing injury or disease will be considered to have been aggravated by service where there is an increase in the disability during service, unless there is a specific finding that the increase in the disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. The burden falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both pre-existing and not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (2004). As such, upon obtaining a VA examination, the issue of aggravation must be adequately addressed. Second, remand is required to attempt to obtain private medical records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2011). This includes making reasonable efforts to obtain relevant private medical records. 38 C.F.R. § 3.159(c)(1). Such reasonable efforts generally include an initial request and, if the records are not received, at least one follow-up request, unless a response indicates that the records sought do not exist or that a follow-up request for the records would be futile. 38 C.F.R. § 3.159(c)(1). If, however, VA receives information showing that subsequent requests to this or another custodian could result in obtaining the records sought, then reasonable efforts will include an initial request and, if the records are not received, at least one follow-up request to the new source or an additional request to the original source. 38 C.F.R. § 3.159(c)(1). Here, a VA examination was conducted in May 2012, in which the examiner referenced private medical records from Hospital De La Concepcion in 1987, prior to the Veteran's entry into service, in which the Veteran was shown to have anemia. These records were a part of the Veteran's service treatment records, as it appears they were submitted during enlistment into the service to highlight the Veteran's medical history. It does not appear that private treatment records from this facility, other than those provided by the Veteran to the military, have been obtained. As such, because these records may show whether the Veteran's anemia pre-existed military service and the degree to which it may have later been aggravated by military service, an attempt must be made to obtain them. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and afford her the opportunity to identify by name, address and dates of treatment or examination any medical records relevant to her claim, including those from the Hospital De La Concepcion, where she was noted to have anemia in 1987. Subsequently, and after securing the proper authorizations where necessary, the AMC must make arrangements to obtain all the records of treatment or examination from all the sources which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file by the AMC. If, after making reasonable efforts to obtain named records the AMC is unable to secure same, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; and (c) describe any further action to be taken by the AMC with respect to the claim. The Veteran must then be given an opportunity to respond. 2. After any additional records are associated with the claims file, the AMC should afford the Veteran a VA examination tailored to Persian Gulf War Veterans, as the Veteran has notified VA that she served in the Persian Gulf. It should be performed as set out by VA's Undersecretary for Health in a September 2000 Fast Letter (Fast Letter 00-68), and pursuant to the specific instructions for VA examiners as found in the revised AMIE Disability Examination Worksheets - specifically, the "Guidelines for Disability Examinations in Gulf War Veterans." 3. The AMC shall ask the VA examiner in the May 2012 VA examination to provide an addendum opinion, or if the VA examiner determines that it is necessary, schedule the Veteran for an appropriate in-person VA examination to ascertain the etiology of her currently diagnosed anemia. If an examination is scheduled, properly notify the Veteran of the examination by sending notice of the details of the examination to the Veteran at her correct address. Send the notice with sufficient time in advance to allow the Veteran to attend the examination. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. The examiner must state in the examination report that the claims folder, including the Veteran's lay statements, her National Guard records, her post-service treatment records, and the medical literature have been reviewed in forming the medical opinion. The VA examiner must offer opinions on the following: a) Is it at least as likely as not (a probability of at least 50 percent or more) that the Veteran's currently diagnosed anemia was incurred during her period of active duty from November 1990 to April 1991? b) Did the Veteran's anemia clearly and unmistakably pre-exist her entry into each period of ACDUTRA? The Veteran had ACDUTRA service from September 12, 1992, to September 26, 1992; May 23, 1993, to June 6, 1993; July 17, 1994, to July 31, 1994; June 25, 1995, to July 9, 1995; May 26, 1996, to June 9, 1996; June 22, 1997, to July 6, 1997; June 28, 1998, to July 12, 1998; May 30, 1999, to June 13, 1999; June 3, 2000, to June 17, 2000; March 24, 2001, to April 7, 2001; June 22, 2002, to July 6, 2002; May 31, 2003, to June 14, 2003; June 26, 2004, to July 10, 2004; June 25, 2005, to July 9, 2005; June 24, 2006, to July 8, 2006; April 13, 2007, to April 15, 2007; May 26, 2007, to June 9, 2007; May 31, 2008, to June 14, 2008; May 23, 2009, to June 6, 2009; October 19, 2009, to October 21, 2009; and, October 24, 2009, to October 28, 2009. i) If there is clear and unmistakable evidence that the anemia pre-existed a period of ACDUTRA, is there clear and unmistakable evidence (evidence that is obvious and manifest) that the anemia was not aggravated beyond its natural progression during this period of ACDUTRA? ii) If there is not clear and unmistakable evidence that the anemia pre-existed an ACDUTRA period, is it at least as likely as not (a probability of at least 50 percent or more) that her anemia was incurred during this period of ACDUTRA? The VA examiner is asked to note the different standards of proof. The term "as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. In comparison, "clear and unmistakable evidence" means "with a much higher certainty than 'at least as likely as not' or 'more likely than not.'" 4. Review the medical opinion to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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. 2012). _________________________________________________ MARJORIE A. AUER 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) (2012).