Citation Nr: 1329197 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 09-21 340 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 30 percent for post operative anterior compartment syndrome with left foot flexor weakness. 2. Entitlement to service connection for calcification in the anterior-posterior window and right lung/hilum with granulomas and mild restrictive lung defect, to include as due to exposure to asbestos. 3. Entitlement to service connection for calcification in the anterior-posterior window of the spleen with granulomas, to include as due to exposure to asbestos. 4. Entitlement to service connection for anemia with Crohn's disease, to include as due to exposure to asbestos. 5. Entitlement to service connection for glucose 6 phosphate dehydrogenage (G-6-PD) deficiency. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from July 1987 to June 1995. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2008 rating decision by the RO in St. Petersburg, Florida that denied a claim for an increased rating for post operative anterior compartment syndrome with left foot flexor weakness and claims for service connection for lung and spleen disabilities, anemia with Crohn's disease, and G-6-PD deficiency. In October 2008, a notice of disagreement (NOD) was filed with the denial of these claims. A statement of the case (SOC) was issued in April 2009 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in May 2009. A review of the Virtual VA claims processing system reflects an August 2013 brief submitted on behalf of the Veteran, a copy of which has been associated with the claims file, as well as reports from a VA examination not pertinent to the claims on appeal. For reasons expressed below, the matters on appeal are being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND Based on a review of the claims file and the contentions of record, the Board finds that further RO action on the claims on appeal is warranted. First with the respect to the claim for an increased rating for post operative anterior compartment syndrome with left foot flexor weakness, the Veteran's representative in his August 2013 brief requested that in light of the fact that the Veteran was last afforded a VA compensation examination addressing this disability in February 2008, the claim be remanded for another VA examination to determine the current severity of this disability. Given this assertion and the amount of time that has elapsed since the Veteran was last afforded a VA examination to assess the disability at issue (over five years), and the need for clinical findings and medical comments to evaluate his service-connected post operative anterior compartment syndrome, the RO upon remand will be requested to arrange for a VA examination of the Veteran in regard to his claim for an increased rating. Pursuant to 38 C.F.R. § 3.327(a) (2013), examinations will be requested whenever VA determines, as the Board does in the instant case, that there is a need to determine the exact severity of a disability. See also 38 C.F.R. § 3.159 (2013). With respect to the claims for service connection, the Board is required to consider all theories of entitlement raised by the appellant, or raised in the record, in adjudicating these claims. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), and Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence). In his substantive appeal, the Veteran asserted that his disability claimed as anemia with Crohn's disease was the result of exposure to asbestos and "other toxins" during service, and while he did not therein specifically assert that any of the other disabilities for which service connection is claimed were related to asbestos exposure, the Board finds from a review of the record that the claims for service connection for lung and spleen disorders should also include consideration as to whether these disabilities are related to exposure to asbestos during service. See id. The issues have been described accordingly on the Title Page. The RO is reminded that, in cases involving asbestos exposure, the claim must be analyzed under governing VA administrative protocols. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428(1993). Although there is no specific statutory or regulatory guidance regarding claims for residuals of asbestos exposure, VA has several guidelines for compensation claims based on asbestos exposure. M21-1, VBA Adjudication Procedure Manual M21-1 Manual Rewrite (M21-1 MR), Part IV, Subpart ii, Ch. 2, Section C, Topic 9 and Section H, Topic 29 (Dec. 13, 2005). Additionally, VA must follow development procedures specifically applicable to asbestos-related claims. Ashford v. Brown, 10 Vet. App. 120 (1997). VA must determine whether military records demonstrate evidence of asbestos exposure during service; whether there was pre-service, post-service, occupational, or other asbestos exposure; and whether there is a relationship between asbestos exposure and the claimed disease. As such, this remand will request that the adjudication of the claims for service connection for lung and spleen disabilities and anemia with Crohn's disease include consideration of the foregoing guidelines and procedures. With respect to the claim for service connection for G-6-PD deficiency, the RO has denied service connection for this claim based on a determination that G-6-PD deficiency is a congenital or developmental defect that was unrelated to military service and not subject to service connection. However, service connection may be granted for a hereditary disease which either first manifested itself during service or which pre-existed service and was aggravated beyond the normal progression of the disease during service. See VAOPGCPREC 67-90 (July 18, 1990). VA's General Counsel has further explained that service connection may be granted for diseases of congenital, developmental, or familial origin, as long as the evidence as a whole establishes that the familial conditions in question were incurred or aggravated during service within the meaning of VA laws and regulations. VAOPGCPREC 82-90 (July 18, 1990). Service connection is warranted for a congenital defect if there is evidence of additional disability due to aggravation during service of the congenital defect by superimposed disease or injury. See VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; and VAOPGCPREC 11-99. VA's General Counsel has also expressly stated that the terms "disease and "defects" must be interpreted as being mutually exclusive. The term "disease" is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. On the other hand, the term "defects" would be definable as structural or inherent abnormalities or conditions which are more or less stationary in nature. See VAOPGCPREC 82-90. The record in this case does not reflect whether G-6-PD deficiency is a "disease" or a "defect" as defined in the VA General Counsel opinions relevant to service connection for genetic or hereditary abnormalities, or otherwise reflect consideration of the principles embodied in these opinions, in its adjudication of the Veteran's claim; as such, the RO will also be requested to consider these principles in the adjudication of the claim for service connection for G-6-PD deficiency. Noting some of the pertinet evidence with respect to the claims for service connection, the relevant evidence contained in the service treatment reports (STRs) includes July and September 1987 STRs indicating the Veteran had G-6- PD deficiency; an August 1987 chest x-ray report reflecting calcifications and evidence of granulomas; and February 1993 and September 1994 laboratory findings (low hemoglobin readings, including Mean Cell Hemoglobin Concentration (MCHC)) possibly suggestive of anemia. The relevant, or potentially relevant, post service evidence includes reports of treatment for abdominal pain in March 1997 and February 2002 and from a VA examination in March 2003 indicating that the Veteran's abdominal pain was possibly related to G-6-PD deficiency. Also of record are medical impressions of anemia on VA outpatient treatment reports dated from 2005 and Crohn's disease from 2006, as well as reports from March 1999 and February 2000 pulmonary function tests reflecting a restrictive airway defect. A November 2005 VA x-ray showed calcified granulomas in the spleen and right lung base. Given the contentions and relevant in-service and post service medical evidence of record, some of which has been set forth above, the Board finds that VA examinations addressing the claims for service connection, to include medical opinions as to whether any pertinent current disability is etiologically related to service, are necessary in this case in order to fulfill the duty to assist the Veteran. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran is hereby advised that failure to report for any scheduled examination, without good cause, may well result in the denial of the pertinent claim. See 38 C.F.R. § 3.655 (2013). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination, the RO should obtain and associate with the claims file a copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo VA examination, the RO should obtain any additional relevant VA records which may be available and provide him with another opportunity to present information and/or evidence pertinent to the claims on appeal, explaining that he has a full one- year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one- year notice period). Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the expanded claims on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the matters on appeal. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding private medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or response(s) from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examinations addressing the claims on appeal by appropriate physicians, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be made available to each physician designated to examine the Veteran, and each examination report should reflect consideration of the Veteran's documented medical history and assertions. (a) With respect to the increased rating claim on appeal, The examiner should identify, by Roman Numberal, all muscle groups affected by the service- connected anterior compartment syndrome residuals and for each such muscle group, whether there is "slight," "moderate," "moderately severe" or "severe" disability therein as defined by 38 C.F.R. § 4.56. The examiner should also specifically address the impact such disability has on the Veteran's employability. (b) With respect to the claims for service connection, following a physical examination of the Veteran, and review of the claims file, the appropriate physician should provide an opinion as follows: (i) Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that a disability involving the lungs, spleen, or anemia/Crohn's disease shown at any point since the Veteran filed his claims in September 2007 had its onset during service or is/was otherwise medically related to service, to include asbestos exposure therein. In rendering the requested opinions, the physician should indicate whether the Veteran actually exhibits radiographic changes indicative of asbestos exposure (consistent with M21-1, Part VI, 7.21(a)(1), p. 7-IV-3 (January 31, 1997); and consider the Veteran's assertions of in service asbestos exposure. The physician should also specifically consider and discuss the August 1987 in-service chest x-ray reflecting calcifications and evidence of granulomas; the March 1999 and February 2000 pulmonary function testing reports reflecting restrictive airway disease; and a November 2005 VA x-ray demonstrating calcified granulomas in the spleen and right lung base. (ii) Whether it is at least as likely as not that any disability associated with G-6-PD deficiency originated in or was aggravated during the Veteran's service. In providing this opinion, the examiner should specifically address (a) whether the Veteran's G-6- PD deficiency is considered a congenital or developmental disease (as opposed to a defect); and, if so (b) whether it increased in severity beyond the natural progression of the disorder in service. If this condition is considered a defect, the examiner should address whether there is evidence of additional disability due to aggravation of the condition during service by superimposed disease or injury. Each physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to any scheduled VA examination(s), obtain and associate with the claims file a copy of any notice of the date and time of any such examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal in light of all pertinent medical evidence (to include any added to the record since the last adjudication of the claims) and legal authority, to include those pertaining to the adjudication of claims for service connection based on exposure to asbestos codified at M21-1 and the VA General Counsel opinions pertaining to congenital or hereditary conditions. 8. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ B. MULLINS Acting 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).