Citation Nr: 1316089 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 09-18 148 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 10 percent for anemia. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from December 1982 to July 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. As relevant to the instant appeal, a review of the Virtual VA claims file reveals a July 2010 rating decision that address the issue of entitlement to service connection for Sjorgen's Syndrome and notes the evidence relied upon therein. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify the Veteran if further action is required. REMAND The Veteran served as a U.S. Marine Corps supply administrator. She retired at the rank of Master Sergeant. The Veteran contends that her anemia is more severe than is contemplated by the current rating. She further alleges that a higher rating is warranted because she has also been diagnosed with Sjorgen's Syndrome, which she claims is associated with anemia. The Veteran's service-connected anemia, diagnosed as non specific anemia and leukopenia, is currently rated under 38 C.F.R. § 4.117, Diagnostic Code 7700, for megaloblastic and hypochromic-microcytic anemia. A noncompensable rating is warranted if hemoglobin measurements are 10 gm/100 ml (g/dl) or less but otherwise asymptomatic. A 10 percent rating is warranted if hemoglobin is 10 gm/100ml or less with findings such as weakness, easy fatigability, or headaches. A 30 percent rating is warranted if the hemoglobin level is 8 gm/100 ml or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath. A 70 percent rating is warranted if hemoglobin is 7 gm/100 ml or less, with findings such as dyspnea on mild exertion, cardiomegaly, tachycardia (100 to 120 beats per minute), or syncope (3 episodes in the last 6 months). A 100 percent rating is available if the hemoglobin level is 5 gm/100 ml or less, with findings such as high output congestive heart failure or dyspnea at rest. Id. By way of background, in August 2004, the agency of original jurisdiction (AOJ) granted service connection for anemia with leukopenia and assigned a 10 percent rating based upon a June 2004 blood test showing hemoglobin as 10.3 g/dl with a history of symptoms of weakness, easy fatigability, and headaches. VA received the Veteran's current claim for an increased rating in October 2008. In connection with her current claim for an increased rating, the Veteran submitted a July 2004 letter from a private physician. The physician noted that the Veteran was diagnosed with Sjorgen's Syndrome, an autoimmune disease of the connective tissue often manifesting as dry eyes and dry mouth. Dorland's Illustrated Medical Dictionary, 1832 (30th. Ed., 2003). He noted the history of leukopenia and commented that it was unclear whether the hematologic dysfunction was secondary to the connective tissue disease. The AOJ considered the Veteran's statement as raising a claim for service connection for Sjorgen's Syndrome. In December 2008, the Veteran submitted the results of blood tests obtained in service and in April 2005, November 2006, February 2007, and January 2008. In November 2006, hemoglobin was measured as 9.7 g/dl. The 2005, 2007, and 2008 test results do not contain a measurement of hemoglobin. The Veteran noted that the test results contained evidence of a high inflammatory/antibody condition that is "tied to blood work." In January 2009, the AOJ denied a rating in excess of 10 percent for anemia because the evidence of record did not show hemoglobin at 8 g/dl or less with symptoms of weakness, fatigue, headaches, lightheadedness, or shortness of breath. In February 2009, the Veteran expressed disagreement with the decision because it did not address the diagnosis of Sjorgen's syndrome. The AOJ performed evidentiary development for Sjorgen's Syndrome and, in a July 2010 rating decision, denied service connection as a disease separate from anemia. In such decision, the AOJ noted that a review of VA medical record systems showed that she did not receive VA outpatient medical care. The AOJ also considered two VA examinations conducted in December 2009 and June 2010 for Sjorgen's Syndrome that are not part of the paper or electronic record. "The legal standard for relevance requires VA to examine the information it has related to medical records and if there exists a reasonable possibility that the records could help the Veteran substantiate his claims for benefits, the duty to assist requires VA to obtain the records." Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed.Cir.2010). However, "[t]here must be specific reason to believe these records may give rise to pertinent information to conclude they are relevant." Id. Here, the AOJ's July 2010 decision indicated that the Veteran underwent two physical examinations with laboratory testing. Moreover, such appear to indicate that the Veteran described her current physical health, which is part of the rating criteria for anemia. Moreover, the AOJ noted that the June 2010 VA examination revealed "anemia findings revealed Systolic murmur." Therefore, the Board concludes that the records are potentially relevant to the claim on appeal because the records may show more recent measurements of hemoglobin concentration and clinical observations of additional symptoms such as shortness of breath, cardiomegaly, tachycardia, or syncope. Therefore, a remand is necessary in order for the AOJ to obtain records of any VA medical care or examinations since November 2006, to specifically include the VA examinations for Sjorgen's Syndrome in December 2009 and June 2010 and associate those records with the paper or electronic claims file. Further, as the most recent evidence of private treatment was submitted by the Veteran in 2008, the AOJ must provide the Veteran an opportunity to submit or identify and authorize the recovery of any additional evidence relevant to the severity of anemia. Thereafter, the AOJ should review the record and conducted any additionally indicated development, to include affording the Veteran any VA examinations, deemed necessary for the adjudication of her claim. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with an opportunity to submit or identify any additional private medical evidence that is not of record. Send her the necessary authorizations for the release of any private treatment records not currently on file. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 2. Obtain all records of VA medical care dated since November 2006, to specifically include VA examinations conducted in December 2009 and June 2010, and associate all records obtained with the paper or electronic claims files. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After obtaining all outstanding records, the AOJ should review the record and conducted any additionally indicated development, to include affording the Veteran any VA examinations, deemed necessary for the adjudication of her claim. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, readjudicate the claim for an increased rating for anemia based on the entirety of the evidence. If the claim remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). _________________________________________________ A. JAEGER 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).