Citation Nr: 1315689	
Decision Date: 05/13/13    Archive Date: 05/15/13

DOCKET NO.  05-41 255	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for disability manifested by headaches, muscle pain, joint pain, vision loss, and memory loss, claimed as residuals of an anthrax vaccine.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

J. Meawad, Counsel







INTRODUCTION

The Veteran served on active duty from September 1983 to June 2004. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in June 2004 of a Department of Veterans Affairs (VA) Regional Office (RO).  

In June 2009, July 2011 and September 2012, the claim was remanded for further development.  

Since the requested development from the September 2012 Board remand has not been completed, further action to ensure compliance with the remand directive is required.  Stegall v. West, 11 Vet. App. 268 (1998).

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

In the September 2012 Board remand, insufficient evidence was found to decide the matter based on the applicable theories of service connection and further development under the duty to assist was needed.  Specifically, the September 2009 VA medical opinion only addressed the long-term health effects of anthrax vaccinations and the opinion did not address direct service connection apart from the anthrax vaccine.  A VA examination was requested in order to determine whether the Veteran has chronic headaches, muscle pain, joint pain, vision loss, or memory loss, and, if so, whether chronic headaches, muscle pain, joint pain, vision loss, or memory loss is a progression of similar symptoms in service or the development of a new and separate condition or conditions.



In November 2012, the Veteran was afforded a VA examination.  The VA examiner did not provide the opinion requested.

When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  

Accordingly, the case is REMANDED for the following action:

1.  Afford the Veteran a VA examination by a physician, who has not previously examined the Veteran, to determine: 

a.  Whether the Veteran has chronic headaches, muscle pain, joint pain, vision loss, or memory loss, and, if so, 

b.  Whether it is more likely than not (greater than 50 percent probability), as likely as not (about 50 percent probability), or less likely than not (less than 50 percent probability) that chronic headaches, muscle pain, joint pain, vision loss, or memory loss is a progression of similar symptoms in service, independent of a reaction to the anthrax vaccine, or the development of a new and separate condition or conditions? 

The Veteran's file should be made available to the VA examiner.  

2.  After the development has been completed, adjudicate the claim.  If the benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board.




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).

The 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).



_________________________________________________
George E. Guido Jr. 
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).