Citation Nr: 1300510 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 05-15 487 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for liver disability associated with liver failure, status post liver transplant, to include as due to herbicide exposure. 2. Entitlement to service connection for kidney disability, as secondary to liver failure, status post liver transplant. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from November1965 to December 1985. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2004 rating decision in which the RO denied service connection for liver failure (status post liver transplant) and for kidney failure. The Veteran perfected a timely appeal as to both issues. In May 2009, the Board denied the Veteran's claim for service connection for kidney failure, on a direct basis, and remanded the claims for service connection for liver failure (status post liver transplant) and for kidney failure, on a secondary basis due to liver failure, to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. In April 2011, the Board again remanded the matters remaining on appeal to the RO, via the AMC, for completion of the directives of the May 2009 remand. Unfortunately, for reasons expressed below, the matters on appeal are, again, being remanded to the RO, via the AMC. VA will notify the appellant when further action, on his part, is required. REMAND In the April 2011 remand, the Board requested that the to include arranging for the Veteran to undergo VA examination to obtain a medical opinion as to whether the Veteran had a liver disability that was etiologically related to service, to include as a result of herbicide exposure. As explained below, however, the requested opinion has still not been obtained. As the Board is required to ensure compliance with the instructions of its remands, the matters on appeal must again be remanded. Stegall v. West, 11 Vet. App. 268 (1998). The report of VA examination conducted in May 2011, with addendum opinions completed in June 2011 and August 2012, do not, contain an opinion as to whether the Veteran has or has had a liver disability related to service, to include presumed herbicide exposure. As noted, the Veteran had service in the Republic of Vietnam during the period presumed to involve exposure to an herbicide agent. See 38 C.F.R. § 3.307(a)(6)(iii) (2012)). It appears that the examiner did not provide the opinion because he found that the Veteran was not currently suffering from any manifestations of liver disease (May 2011 VA examination) and/or that he currently does not have cirrhosis (August 2012 addendum). However, the record clearly reflects manifestations of liver disease, to include cirrhosis, during the pendency of the Veteran's claim filed in 2004 following a liver transplant in July 2001. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement of the existence of a current disability for the purpose of a grant of service connection is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim.) Given the holding in McClain, the requirement to ensure compliance with the instructions of its remands (Stegall, supra), and the inadequacy of the medical opinion evidence currently of record (McLendon v. Nicholson, 20 Vet. App. 79 (2006)), a remand is required to obtain an addendum opinion from the May 2011 VA examiner as to whether, at any time since the claim was filed in 2004, the Veteran had a disability of the liver that was etiologically related to service, to include presumed herbicide exposure therein. With regard to the claim for secondary service connection for kidney disability, this claim, as noted in the Board's prior remand, is inextricably intertwined with the Veteran's claim for service connection for liver disability. As the medical evidence suggests that the Veteran's kidney failure may be related to his liver failure, the outcome of this claim is dependent upon whether service connection is established for liver disability associated with liver failure. Thus, as the two claims are inextricably intertwined, the claim for secondary service connection for kidney disability must, regrettably, be remanded again as well. Harris v Derwinski, 1 Vet. App. 80 (1991). While these matters are on remand, to ensure that all due process requirements are met, and that the record before the physician is complete, the RO should give the Veteran another opportunity to present information and/or evidence pertinent to the claims remaining on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2010) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate, current authorization for the RO to obtain records from a private physician referenced in a release for medical records signed by the Veteran in April 2011. Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the remaining claims on appeal. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate, current authorization for the RO to obtain, any outstanding treatment records from the private physician listed by the Veteran in his April 2011 VA Form 21-4142-a Dr. "Ullian" of the MUSC (Medical University of South Carolina) Transplant Center, 162 Ashley Ave., Charleston, SC 29425. The RO should also clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 2. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or response(s) from each contacted entity have been associated with the claims file, or an appropriate time period for the Veteran's response has expired, the RO should forward the Veteran's entire claims file, to include a complete copy of this REMAND, to the VA physician who examined the Veteran in May 2011 for a supplemental opinion. Following review of the claims file, the physician should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that any liver disability demonstrated since the Veteran filed his claim in 2004 had its onset in or is/was otherwise medically related to service, to include presumed in-service herbicide exposure. The Board emphasizes that the requested opinion should be provided even if the physician determines that any liver disability present at any time between 2004 and the present has since resolved. In rendering the requested opinion, the physician should specifically consider and discuss the service treatment records, the treatment report received in August 2004 from T. F. Holmstrom, M.D,(wherein it was noted that the Veteran's cirrhosis was non-alcohol related and non-hepatitis associated and "Agent Orange?" was added to the description of the Veteran's cirrhosis, suggesting that such disability may have been related to herbicide exposure) and all other post-service treatment records, as well as the Veteran's contentions. The examiner should set forth the complete rationale for the conclusions reached in a printed (typewritten) report. 4. To help avoid yet another remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, supra. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims remaining on appeal in light of pertinent evidence and legal authority. 7. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes citation to and discussion of any additional legal authority considered, along with clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).