Citation Nr: 1339006 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 09-08 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for pernicious anemia. REPRESENTATION The Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran and his friend ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1970, including service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision in October 2007 of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In April 2012, the Veteran appeared at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is in the claims file. In June 2012, the Board remanded the claim for service connection for pernicious anemia. The appeal of the Veteran originally included a claim for service connection for peripheral neuropathy for each upper extremity. In a rating decision in February 2103, the RO granted service connection for peripheral neuropathy of the right upper extremity, and awarded a 30 percent rating and service connection for peripheral neuropathy of the left upper extremity, and awarded a 30 percent rating. Both are effective the date the Veteran's claims were received, July 2007. This is considered a full grant of the benefit sought on the appeal for the claim of service connection for peripheral neuropathy for each upper extremity. 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 The Veteran seeks service connection for pernicious anemia, a disability which involves Vitamin B-12 deficiency. He has asserted it is due to either Agent Orange exposure or to his service-connected diabetes mellitus. In June 2012, the Board remanded the matter directing VA to provide a VA examination and requested the VA examiner to provide an opinion whether the Veteran had pernicious anemia, and if so, whether it was related to service. The VA examiner was also asked to address the Veteran's assertion that his pernicious anemia was due to either Agent Orange exposure or to his service-connected diabetes mellitus. The Veteran was provided a VA examination in November 2012 where the examiner diagnosed pernicious anemia but it was currently in remission. He also provided opinions whether pernicious anemia is caused by or related to Agent Orange exposure or the Veteran's service- connected diabetes mellitus. He did not, however, discuss whether the Veteran's pernicious anemia disability is caused by or related to service exclusive of Agent Orange exposure or diabetes. The Veteran would be entitled to service connection for the pernicious anemia disability if the evidence showed his pernicious anemia disability is directly related to service, as opposed to it resulting from the service-connected diabetes mellitus and/or Agent Orange exposure. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (VA is required to consider all theories of entitlement raised either by the claimant or by the evidence of record as part of the non-adversarial administrative adjudication process); Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006) (although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim). Therefore, the Board finds that a remand is required to obtain this missing information. See 38 U.S.C.A. § 5103A (d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Court held that a remand by the Board imposes upon the Secretary of the VA a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Id. On remand, the examiner should provide an addendum opinion whether the current pernicious anemia is caused by or related to service. Accordingly, the case is REMANDED for the following action: 1. Arrange for the examiner who conducted the November 2012 examination, if available, prepare an addendum opinion, and if necessary, conduct a new examination. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The rationale for all opinions should be provided. The examiner is asked to determine pernicious anemia is at least as likely as not (50 percent or greater probability) had its onset during service or is causally and etiologically related to service, considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. 2. After the development requested is completed, adjudicate the claim of service connection for pernicious anemia. If the benefit sought remains 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 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).