Citation Nr: 1326653 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-24 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for hypothyroidism. 2. Entitlement to an initial rating in excess of 10 percent for osteoporosis/osteopenia. 3. Entitlement to an initial compensable rating for anemia. REPRESENTATION Appellant represented by: Nevada Office of Veterans' Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from July 1989 to September 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, which granted service connection for hypothyroidism and assigned a 10 percent disability rating. The RO also granted service connection for anemia and osteopenia and assigned each condition a 0 percent rating. All ratings were effective from October 1, 2009. The Veteran testified at an RO hearing in December 2010. A copy of the hearing transcript has been associated with the claims file. In an August 2011 rating decision, the RO recharacterized osteopenia as osteoporosis/osteopenia, and assigned a 10 percent rating effective from October 1, 2009. 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 Veteran's October 2010 notice of disagreement (NOD), he appealed the initial disability rating assigned for osteopenia and is presumed to be seeking the maximum benefits available under the law for that issue. See AB v. Brown, 6 Vet. App. 35 (1993). When the RO granted a 10 percent rating for osteopenia in the August 2011 rating decision, it incorrectly stated that this represented a full grant of the benefit sought on appeal, as higher ratings are available under the applicable diagnostic codes. Because the Veteran filed a timely NOD for this issue, the Board is required to remand it to the RO/AMC for issuance of a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238 (1999). The Veteran also identified additional private treatment records from the Nevada Cancer Center and University Medical Center of Southern Nevada that were pertinent to his claims. He signed the appropriate releases for VA to attempt to obtain those records on his behalf. However, no such attempt was made. On remand, the RO/AMC should obtain the identified records. Finally, the Veteran's anemia and hypothyroidism are rated under Diagnostic Codes 7700 and 7903, respectively. Both Diagnostic Codes contemplate symptoms of weakness and fatigability, which have been reported by the Veteran. In order to accurately rate the Veteran's disabilities, an additional examination and opinion are necessary to determine to what extent these symptoms can be attributed to either his anemia or his hypothyroidism. See 38 C.F.R. § 4.14. Accordingly, the case is REMANDED for the following action: 1. Issue a Statement of the Case for the claim of entitlement to an initial rating in excess of 10 percent for osteoporosis/osteopenia. If, and only if, the Veteran completes his appeal by filing a timely substantive appeal on the aforementioned issue should it be returned to the Board. 2. Obtain treatment records from the Nevada Cancer Center and University Medical Center of Southern Nevada as identified by the Veteran. If required, provide the Veteran with the necessary authorizations for the release of these records. Obtain these records and associate them with the claims folder. If the records are not obtainable (or none exist), the Veteran should be notified and the record clearly documented. 3. Schedule the Veteran for a VA examination with an appropriate examiner to assess the current severity of his anemia and hypothyroidism conditions. The claims folder, and a copy of this remand, must be available to the examiner for review in conjunction with the examination. The examiner must take a complete history from the Veteran as to the nature and progression of symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran regarding symptoms, the examiner must state this, with a fully reasoned explanation. All appropriate tests and studies should be accomplished. After a review of the examination findings and the entire evidence of record, the examiner must answer the following questions: (i) What is the Veteran's hemoglobin level? (ii) Is anemia manifested by any of the following: headaches, lightheadedness, shortness of breath, dyspnea on exertion or at rest, tachycardia, syncope, cardiomegaly, or congestive heart failure? (iii) Is hypothyroidism manifested by any of the following: constipation, mental sluggishness, mental disturbance (including dementia, slowing of thought, or depression), weight gain, bradycardia, cardiovascular involvement, sleepiness, or cold intolerance? (iv) Does the Veteran have weakness and fatigability? If so, which symptoms, if any, are attributable to anemia? Which are attributable to hypothyroidism? If a determination cannot be made without resorting to speculation, state why this is the case. An explanation must be provided for all opinions or conclusions expressed. 4. After completion of the above and any other development deemed necessary, the RO/AMC should review and re-adjudicate the issues on appeal. If any such action does not resolve each claim to the Veteran's satisfaction, the RO/AMC must provide the Veteran and his representative a supplemental statement of the case (SSOC) and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to this Board for appellate review. 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). _________________________________________________ Vito A. Clementi 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).