Citation Nr: 1310028 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 07-11 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES Entitlement to service connection for anemia and postoperative residuals of a hysterectomy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from July 1985 to January 1995. By its decision of May 13, 2011, the Board of Veterans' Appeals (Board) denied entitlement of the Veteran to service connection for anemia and postoperative residuals of a hysterectomy. For informational purposes, it is noted that this was preceded by entry of a Board decision in May 2010 in which it was determined that new and material evidence had been received to reopen previously denied claims for service connection for anemia and postoperative residuals of a hysterectomy, to include as due to service-connected Raynaud's disease. An appeal of the May 2011 decision was then taken to the U.S. Court of Appeals for Veterans Claims (Court) and the parties to that appeal thereafter jointly moved the Court to vacate the Board's decision and remand the matter for additional actions by the Board. The Court by its order of December 2011 granted the parties' motion and the case was thereafter returned to the Board for additional consideration. This appeal is REMANDED to the RO via the VA's Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required on her part. REMAND The parties to the appeal before the Court determined that the Board in its May 2011 decision had failed to furnish adequate reasons and bases for its denial of the Veteran's claim for service connection for anemia. Among the cited failures were a lack of clarity as to the standard utilized in determining whether there was clear and unmistakable evidence that preexisting anemia did not undergo inservice aggravation, absence of clarity as to which party had the burden to show that inservice aggravation did not occur, the lack of cited evidence to support the conclusion that there was no history of anemia, and use of a contrived definition of severe anemia without citation to evidence to support the definition utilized. Review of the record indicates that the Veteran advised a VA examiner in June 2010 that she was initially told that she was anemic in 1984 during her pregnancy and was given iron and that anemia was also present in service. That VA examiner concluded that the Veteran had a history of mild anemia or a tendency at times to maintain hemoglobin levels at the low range of normal and that severe anemia in 2000 led to a hysterectomy, followed by a normalizing of hemoglobin levels but a continued tendency to remain in the lower spectrum of normal. A medical examination performed at service entrance failed to identify anemia or other entity leading to the Veteran's postservice hysterectomy in 2000, and to that, extent she is entitled to a presumption of soundness as to those entities. 38 U.S.C.A. § 1111. That presumption may be rebutted only upon a two-prong showing by clear and unmistakable evidence, i.e., that which is unequivocal, of both a preexisting condition and a lack of inservice aggravation. Id.; Wagner v. Principi, 370 F.3d 1089, 1096-97 (2004); see also Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The government's "burden of proof is a formidable one," Kinnaman, supra, and it "means that an item cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258 (1999); accord Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003) (noting that "[t]he clear-and- unmistakable-evidence standard is an 'onerous' one"). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b) (2012). The Veteran avers that she experienced secondary anemia due to pregnancy prior to service entrance, but the nature and duration of her preservice anemia is unclear and further development is needed for clarification and AMC consideration of whether there is clear and unmistakable evidence that anemia and disability leading to a postservice hysterectomy preexisted service and, if so, did not undergo inservice aggravation. Additional medical input, including examination and opinion, as to the nature and etiology of the Veteran's anemia and her uterine fibroids or other disability leading to a hysterectomy in 2000 is likewise in order. Accordingly, the case is REMANDED for the following actions: 1. Request that the Veteran provide clarifying information as to the previously reported presence of anemia in 1984 during the course of a preservice pregnancy, particularly the duration and severity of her anemia, treatment afforded, duration of that treatment, and the name and address of the medical professional or institution who diagnosed and/or treated her for anemia. Similar clarifying information as to the diagnosis and treatment of uterine fibroids or other gynecological condition leading to a postservice hysterectomy, the dates thereof, treatment afforded, and the names and addresses of any treating medical professional or institution should be outlined. Additionally, request that the Veteran authorize the release of private medical records relating to her reported treatment prior to service entrance for anemia, any uterine fibroids, and/or and any other disorder leading to the hysterectomy in 2000 and return that release to VA. 2. Upon receipt of the written authorization for release of the Veteran's private medical records compiled prior to service for treatment of anemia during pregnancy, obtain any and all pertinent records from the identified medical professional or institution for inclusion in the Veteran's VA claims folder. 3. Obtain any VA treatment records, not already on file, for inclusion in the actual or virtual VA claims folder. 4. Thereafter, afford the Veteran an appropriate VA medical examination, preferably by a hematologist, for the purpose of determining the nature and etiology of her anemia. Her VA claims file should be made available to the examiner in conjunction with the examination. That examination should entail a complete medical history, a thorough clinical evaluation, and any diagnostic testing deemed necessary by the examiner. All pertinent diagnoses should then be set forth. The VA examiner is asked to address the following questions, offering a complete rationale for each opinion provided, with citation to pertinent items of evidence in the record: (a) Does the evidence of record clearly and unmistakably (i.e., it is undebatable) show that the Veteran had an anemia disorder that existed prior to the Veteran's entrance onto active duty in July 1985? (b) If the answer is yes, does the evidence of record clearly and unmistakably show that the preexisting anemia disorder was not aggravated by service or that any increase in disability was due to the natural progression of the disease? Please identify any such evidence with specificity. (c) If the answer to either (a) or (b) is no, is it at least as likely as not that the Veteran's anemia disorder had its onset in service or is otherwise attributable to service or any event therein, to include service in the Southwest Asia Theatre of Operations? Is it at least as likely as not that primary anemia was manifested during the one-year period following service exit in January 1995, and, if so, how and to what degree was it manifested? (d) If the question of service onset is addressed in (c) above, then also respond to the question of whether it is at least as likely as not that the Veteran's service-connected Raynaud's disease directly caused or aggravated her claimed anemia? Use by the VA examiner of the at least as likely as not language in responding, when indicated by the Board's query, is required. The examiner is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of a nexus or service incurrence as to find against such matters. More likely and as likely support the contended relationship; less likely weighs against the claim. The VA examiner is further advised that aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. 5. Afford the Veteran a VA medical examination by a gynecologist for the purpose of determining the nature and etiology of claimed disability leading to a hysterectomy in 2000. Her VA claims file should be made available to the examiner in conjunction with the examination. That examination should entail a complete medical history, a thorough clinical evaluation, and any diagnostic testing deemed necessary by the examiner. All pertinent diagnoses should then be set forth. The VA examiner is asked to address the following questions, offering a complete rationale for each opinion provided, with citation to pertinent items of evidence in the record: (a) Does the evidence of record clearly and unmistakably (i.e., it is undebatable) show that the disability, to include but not limited to uterine fibroids, directly leading to the Veteran's hysterectomy in 2000 existed prior to the Veteran's entrance onto active duty in July 1985, (b) If the answer is yes, does the evidence of record clearly and unmistakably show that the preexisting disorder was not aggravated by service or that any increase in disability was due to the natural progression of the disease? Please identify any such evidence with specificity. (c) If the answer to either (a) or (b) is no, is it at least as likely as not that the Veteran's anemia disorder had its onset in service or is otherwise attributable to service or any event therein, to include service in the Southwest Asia Theatre of Operations? (d) If the question of service onset is addressed in (c) above, then also respond to the question of whether it is at least as likely as not that the Veteran's service-connected Raynaud's disease directly caused or aggravated disability directly leading to her hysterectomy in 2000? Use by the VA examiner of the at least as likely as not language in responding, when indicated by the Board's query, is required. The examiner is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of a nexus or service incurrence as to find against such matters. More likely and as likely support the contended relationship; less likely weighs against the claim. The VA examiner is further advised that aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. 6. Lastly, readjudicate the issue(s) on appeal and if any benefit sought is not granted to the Veteran's satisfaction, then provide her with a supplemental statement of the case and afford her a reasonable period in which to respond, prior to a return of the case to the Board for further review. No action by the Veteran is required until she receives further notice. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ M. E. LARKIN 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).