Citation Nr: 1322252 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 09-37 135 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for anemia, including as secondary to service-connected hemorrhoids. 3. Entitlement to an increased rating for service-connected lumbosacral strain, rated as noncompensable prior to April 6, 2011, and as 10 percent disabling from that date. 4. Entitlement to an increased (compensable) rating for service-connected hemorrhoids. 5. Entitlement to an increased (compensable) rating for service-connected internal derangement of the left knee. ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from March 1980 to March 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 RO decision of the RO in Chicago, Illinois. In a July 2011 rating decision, the RO granted an increased 10 percent disability rating for service-connected lumbosacral strain, effective April 6, 2011. The issue involving the Veteran's low back has therefore been recharacterized as reflected on the title page. The Veteran was scheduled for a videoconference hearing in May 2012 before a Veterans Law Judge of the Board. As the Veteran failed to appear for the proceeding and has not provided an explanation for his absence or requested to reschedule the hearing, his hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d). In July 2012, the Board remanded this case to the RO via the Appeals Management Center (AMC) for additional evidentiary development. The case was subsequently returned to the Board. 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 Regrettably, additional development is necessary prior to appellate review. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. A Court or Board remand confers upon the appellant the right to compliance with that order. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). In July 2012, the Board remanded the case to the RO via the AMC for additional development. Some of the development was completed, and the case was subsequently returned to the Board. Unfortunately, as there was inadequate compliance with the remand directives, another remand is required. Id. Medical Records As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In its July 2012 remand, in an attempt to comply with VA's duty to assist the Veteran, the Board directed the AMC to obtain the Veteran's complete medical records dated from March 2000 to the present, to include VA medical records, private medical records, and medical records from Scott Air Force Base (AFB), where the Veteran has received primary care for several years. Although the AMC has obtained some of the above records, not all of them have been obtained, and thus the evidentiary record is still incomplete. In this regard, the Board notes that the Veteran has also provided some inaccurate dates in his multiple August 2012 authorizations to release information to VA (VA Form 21-4142), which has hindered the attempts to obtain the complete records. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that the duty to assist is not a "one-way street," and that, if he desires help with his claim, he must cooperate with VA's efforts to assist him). Specifically, in August 2012, the Veteran reported that Dr. C. at St. Elizabeth's Hospital performed a hemorrhoid operation in October 2009, whereas other records show that this operation was conducted in January 2010. The AMC has obtained a November 2009 treatment note from Dr. C., showing that hemorrhoidal excision was planned. The subsequent operative report and post-operative private medical records are not on file. These private medical records are highly relevant to the claim for an increased rating for service-connected hemorrhoids, and must be obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The AMC has obtained most of the private medical records identified by the Veteran including records from Dr. C. at St. Elizabeth's Hospital, dated in November 2009, laboratory tests from St. Elizabeth's Hospital dated in January 2010, private medical records from Dr. K.V. and St. Elizabeth's Hospital, dated in December 2010, and duplicate copies of private medical records from Dr. T.F., apparently dated in 2008. The AMC obtained ongoing VA medical records, including recent treatment records from Jefferson Barracks, a VA facility. The AMC made one attempt to obtain identified private medical records dated in October 2009 from Dr. V.P. at Belleville Memorial, but no response was received, and no records were obtained. The Board finds that another attempt must be made. Governing law provides that VA shall make not less than two requests to a custodian of a private record in order for an effort to obtain relevant private records to be treated as reasonable under this section, unless it is made evident by the first request that a second request would be futile in obtaining such records. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. 112-154, 126 Stat. 1165, Title V, § 505(a) (Aug. 6, 2012), to be codified at 38 U.S.C.A. § 5103A(b)(2)(B). In its prior remand, the Board noted that records dated in 2007 reflect that the Veteran received primary care at the "375th Medical Group MDOS/SGOP." A May 2008 VA outpatient treatment record reflects that the Veteran was currently employed as a civilian at Scott AFB and received treatment from a physician at Scott AFB, Dr. P.L. A December 2010 private medical record from St. Elizabeth's Hospital also indicates that the Veteran had a primary care doctor at Scott AFB. An August 2011 VA outpatient treatment record reflects that the Veteran wanted to establish care at the VA, but wanted to get his medications from Scott AFB. An August 2012 VA outpatient treatment record reflects that the Veteran still worked in civil service. Thus, it is very clear that the Veteran received extensive primary care treatment at Scott AFB, and the AMC made no attempt to obtain the associated medical records, despite the Board's remand instructions. These records must be obtained prior to appellate review. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Anemia Service connection is permissible on a direct basis for disability that was incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection is also permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (2012). Supporting medical nexus evidence generally is needed to associate a claimed condition with a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When determining service connection, all theories of entitlement - direct, presumptive and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). In its July 2012 remand, the Board also instructed the AMC to obtain a medical nexus opinion regarding the claim for service connection for anemia, and this was not done. The Board noted that the March 2008 VA examiner diagnosed anemia, but stated that the etiology was yet to be determined. A review of the examination report reflects that the examiner noted that the Veteran's primary care physician was working on this problem. The Board again finds that a VA medical nexus opinion is needed to determine the etiology of any current anemia, with a review of the claims file and medical evidence, and an adequate supporting rationale. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided); Stefl v. Nicholson, 21 Vet. App. 120, 123-25 (2007) (VA's duty to assist a Veteran with a claim includes providing an adequate examination when such an examination is indicated as necessary); Nieves-Rodriguez, 22 Vet. App. 295 (2008); McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The examiner should be asked to provide a medical opinion as to whether any current anemia is related to service, or was caused or permanently aggravated by service-connected hemorrhoids. Increased Ratings As noted in the prior July 2012 remand, additional medical comment is needed regarding the current level of severity of the service-connected low back, left knee and hemorrhoid disabilities. The Board notes that the most recent VA compensation examination of these disabilities was conducted in April 2011, more than two years ago. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); see, too, Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). See, as well, VAOPGCPREC 11-95 (April 7, 1995) and Green v. Derwinski, 1 Vet. App. 121 (1991). Moreover, the Board notes that the April 2011 VA examiner specifically stated that the Veteran's claims file was not available for review, and that he reviewed an electronic copy of a January 2011 X-ray study by the Department of Defense. A report of such X-ray study is not on file and must be obtained. At this VA examination, the Veteran also reported that he underwent a magnetic resonance imaging (MRI) scan of the spine at Scott AFB, reportedly in February 2011. The most recent VA medical treatment records on file are dated in August 2012. Ongoing relevant VA, private, or Air Force medical treatment records must be obtained and considered. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). See also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in "constructive", if not actual, possession of the agency and must be obtained and considered if they could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. With the Veteran's authorization, the AMC should attempt to obtain any relevant treatment records from Scott Air Force Base, and/or the 375th Medical Group, dated from March 2000 to the present. In particular, the AMC should attempt to obtain a copy of a January 2011 X-ray study of the Veteran's spine, and a report of a magnetic resonance imaging (MRI) scan of the spine, reportedly dated in February 2011. Document all efforts to obtain these additional records. As these records are in the possession of a Federal department or agency, obtaining them is governed by 38 C.F.R. § 3.159(c)(2). If attempts and necessary follow-up attempts to obtain these records prove unsuccessful, and it is determined that further attempts would prove futile, then document this in the file and notify the Veteran of this in accordance with 38 C.F.R. § 3.159(e). 2. Ask the Veteran to provide the names and addresses of all VA, private (to include St. Elizabeth's Hospital), or Air Force medical care providers that have evaluated or treated him for his low back disability, left knee disability, hemorrhoids, anemia, and/or sleep apnea since August 2012. With his authorization, obtain all identified records that are not already in the claims file. The AMC should make another attempt to obtain private medical records from Dr. V.P. and St. Elizabeth's Hospital, after obtaining the Veteran's updated authorization. Document all efforts to obtain these additional records. If the records identified are not in the possession of a Federal department or agency, then obtaining them is governed by 38 C.F.R. § 3.159(c)(1), whereas subpart (c)(2) controls if they are in the possession of a Federal department or agency. If attempts and necessary follow-up attempts to obtain any additionally identified records prove unsuccessful, and it is determined that further attempts would prove futile, then document this in the file and notify the Veteran of this in accordance with 38 C.F.R. § 3.159(e). 3. Upon receipt of all additional records, forward the claims file to a VA examiner, to obtain a medical nexus opinion concerning the etiology of the Veteran's anemia. The claims file, including a complete copy of this remand (and any additional evidence obtained on remand), must be made available to and reviewed by the examiner for the pertinent medical and other history. The examiner should specifically respond to the following questions: a) What is the likelihood (very likely, as likely as not, or unlikely) that any current anemia is directly related to the Veteran's military service or dates back to his service? (b) What is the likelihood (very likely, as likely as not, or unlikely) the Veteran's already service-connected hemorrhoids caused or are aggravating any current anemia? The term "as likely as not" means at least 50 percent probability. It does not, however, mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Aggravation is defined for legal purposes as a chronic or permanent worsening of the underlying condition beyond its natural progression versus just a temporary or intermittent flare-up of symptoms. If the examiner determines there has been aggravation, he or she should try and quantify the amount of additional disability the Veteran now has, above and beyond that he had prior to the aggravation. The examiner must discuss the underlying rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. 4. Schedule appropriate VA compensation examination(s) to reassess the severity of the Veteran's service-connected low back disability, left knee disability, and hemorrhoids. The claims file, including a complete copy of this remand (and any additional evidence obtained on remand), must be made available to and reviewed by the examiner for the pertinent medical and other history. All necessary tests and studies should be conducted, including range of motion of the low back and left knee disabilities. The examiner should indicate whether or not there is recurrent subluxation or lateral instability of the left knee. The examiner must discuss the underlying rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. 5. Finally, readjudicate the claims on appeal. If these claims are not granted to the Veteran's satisfaction, send him a supplemental statement of the case and give him an opportunity to respond before returning the file to the Board for further appellate consideration of these claims. The appellant has the right to submit additional evidence and argument on the 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. PARAKKAL 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).