Citation Nr: 1308664 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 08-25 125 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for chronic lymphocytic leukemia (CLL) with anemia and bladder problems, to include as due to undiagnosed illness. 2. Entitlement to service connection for a prostate condition, to include as due to undiagnosed illness. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1973 to January 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The issues on appeal were previously before the Board in December 2010, at which time the case was remanded for additional development. The case is again before the Board for appellate consideration. In the August 2008 VA Form 9, the Veteran requested a Central Office hearing before a member of the Board in Washington D.C. However, the Veteran advised the Board in July 2010 the he would be unable to attend such a hearing. The Veteran further stated that he wanted to have his representative provide testimony on his behalf. The Board notes that a November 2010 Informal Hearing Presentation from the Veteran's representative is of record. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets the delay, additional development is needed prior to further disposition of the claim. In the instant case, the Veteran contends that his claimed conditions are related to environmental exposures during his service in Southwest Asia during the Persian Gulf War. The Board notes that service treatment records reflect a December 1985 medical examination wherein the examiner noted that the Veteran had mild anemia with a presumptive iron deficiency. The service treatment records are negative for further remarks pertaining to anemia or any iron deficiency. VA treatment records show that the Veteran was diagnosed with CLL in April 2007. He was also assessed with anemia. An April 2007 treatment note indicates that CLL is associated with autoimmune hemolytic anemia. In the January 2011 VA examination, it was noted that the Veteran was diagnosed with CLL in April 2007. The VA examiner opined that the Veteran suffered from CLL with acute prolymphocytic transformation. However, the examiner reported that an opinion regarding the possible relationship between the diagnosed CLL and the Veteran's military service could not be resolved without resorting to mere speculation. No explanation for such statement was provided. The Court of Appeals for Veterans Claims has held that, if an examiner concludes that a non-speculative opinion cannot be offered, he or she must explain the basis for such a conclusion or the basis must otherwise be apparent from the evidence. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). To be adequate, more than a conclusion needs to be expressed by the examiner that the etiology of a particular condition is not known or is unknowable. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Rather, a sufficient rationale and supporting explanation need to be provided that addresses such matters as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and whether the question is so outside the norm of practice that it is really impossible for the examiner to use his or her medical expertise and training to arrive at an opinion. Jones, supra. In light of the above, the Board finds that an additional opinion is necessary. In regards to the Veteran's claimed prostate condition, the Board notes that the Veteran's service treatment records are negative for complaints, findings, or treatment of any prostate condition. Upon clinical evaluation during the September 1991 separation examination, the examiner noted that the prostate was without masses or tenderness. VA treatment records show that in May 2007, a cystoscopy revealed lateral lobe hypertrophy of the prostate. A follow-up cystoscopy performed in June 2007 also found enlarged lateral lobe hypertrophy. However, no underlying diagnosis referable to the prostate was indicated. It was noted in the January 2011 VA examination that the Veteran suffered from an asymptomatic enlarged left lobe of the prostate in 2007. The examiner noted the prostate problem was not the result of being in service. However, a rationale for that opinion was not provided. In addition, a specific diagnosis for a prostate condition was not provided, and the VA examiner did not indicate if there were signs or symptoms of an undiagnosed illness, as directed in the remand. Thus, an additional opinion is necessary. In addition, VA treatment records dating up to January 2010 are contained in the claims file. Relevant ongoing medical records should be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain relevant treatment records dating since January 2010 from the Hampton VA Medical Center. If no relevant records exist, the claims file should be annotated to reflect such. 2. Provide the claims file to a VA hematologist to obtain an opinion as to whether the Veteran's diagnosed CLL is related to service. If a new examination is deemed necessary to respond to the questions below, one should be scheduled. Following review of the claims file, the hematologist should respond to the following questions: a. Is the anemia noted in service in December 1985 an early manifestation of the CLL diagnosed in 2007? Please explain why or why not. b. Is it more likely (greater than 50 percent probability), less likely (less than 50% probability) or at least as likely as not (50% probability) that the Veteran's CLL arose during service or is otherwise related to any incident of service, including environmental exposures in the Persian Gulf? Please explain the reasoning for the conclusions reached. c. If the examiner determines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why the question cannot be resolved must be provided. 3. Provide the claims file to the examiner who conducted the January 2011 VA examination, if available. If a new examination is deemed necessary to respond to the questions below, one should be scheduled. If the original examiner is not available, the claims file should be forwarded to another physician to obtain the requested opinions. Following review of the claims file, the examiner should respond to the following questions: a. Does the finding of an enlarged lobe of the prostate represent a diagnosable prostate disability? If so, please provide the diagnosis. b. Is it more likely (greater than 50% probability), less likely (less than 50% probability) or at least as likely as not (50% probability) that a diagnosed prostate disability arose during service or is otherwise related to service, to include environmental exposures in the Persian Gulf? Please explain the reasoning for the conclusions reached. c. If no diagnosed prostate disorder is identified, the examiner should indicate whether the enlarged left lobe of the prostate represents an undiagnosed illness resulting from service in the Persian Gulf. Please explain the reasoning for the conclusions reached. d. If the examiner determines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why the question cannot be resolved must be provided. 3. After completion of the above development, the Veteran's claims should be readjudicated. If the claims remain denied, he and his representative should be provided with a supplemental statement of the case (SSOC) and be given an opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. 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). _________________________________________________ K. A. BANFIELD 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).