Citation Nr: 1339610 Decision Date: 12/02/13 Archive Date: 12/18/13 DOCKET NO. 99-14 381 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for anemia, to include under the provisions of 38 C.F.R. § §3.317. ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran was a member of the Army National Guard of Puerto Rico. She had active duty service from November 1990 to April 1991. The Veteran served in the Persian Gulf from January 1991 to April 1991. The Veteran also had the following periods of active duty for training (ACDUTRA): September 12, 1992, to September 26, 1992; May 23, 1993, to June 6, 1993; July 17, 1994, to July 31, 1994; June 25, 1995, to July 9, 1995; May 26, 1996, to June 9, 1996; June 22, 1997, to July 6, 1997; June 28, 1998, to July 12, 1998; May 30, 1999, to June 13, 1999; June 3, 2000, to June 17, 2000; March 24, 2001, to April 7, 2001; June 22, 2002, to July 6, 2002; May 31, 2003, to June 14, 2003; June 26, 2004, to July 10, 2004; June 25, 2005, to July 9, 2005; June 24, 2006, to July 8, 2006; April 13, 2007, to April 15, 2007; May 26, 2007, to June 9, 2007; May 31, 2008, to June 14, 2008; May 23, 2009, to June 6, 2009; October 19, 2009, to October 21, 2009; and, October 24, 2009, to October 28, 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which denied the benefit sought on appeal. On her June 1999 Substantive Appeal (on VA Form 9), the Veteran requested a Board hearing. The hearing was scheduled for June 7, 2004. On June 3, 2004, the Veteran cancelled the hearing. To date, she has not requested a new Board hearing. Accordingly, the Board considers her hearing request to be withdrawn. 38 C.F.R. § 20.704(d) (2013). In December 2004, June 2009, January 2012, November 2012, and June 2013, the Board remanded this matter to the RO via the AMC in Washington, DC, for additional development. Unfortunately, the instructions of the June 2013 remand have not been substantially complied with and further development is required. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. 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 A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In Stegall, the U.S. Court of Appeals for Veterans Claims held that "where . . . the remand orders of the Board . . . are not complied with, the Board itself errs in failing to insure compliance." Id. In light of the failure of the VA examiner who completed the September 2013 opinion to comply with the instructions of the June 2013 remand, it is unlikely that this opinion would withstand judicial scrutiny. As such, another addendum opinion and, possibly, further examination should be obtained in order to comply with the instructions of the June 2013 remand. Setting forth the inadequacies of the September 2013 opinion, this opinion was to as, directed by the Board in the most recent remand, cite the specific record from Hospital De La Conception in 1987 that was noted in the May 2012 VA examination report as demonstrating clear and unmistakable evidence of a pre-existing anemia disorder, and if the examiner's conclusion was based on the laboratory values listed on the April 1987 private treatment record, the examiner was to state and explain the significance of any laboratory value. However, the September 2013 opinion only noted in this regard that "as previously stated [the Veteran's] anemia preexisted . . . active service." Moreover, the examiner did not, as requested in the June 2013 remand, "reconcile the conflicting VA opinion dated in April 2009 in which a VA examiner reviewed the claims file and determined that there was no evidence of the existence of anemia prior to active service or during active service." The June 2013 remand also requested the examiner to state whether was "clear and unmistakable evidence (evidence that is obvious and manifest)" that anemia was not aggravated beyond its natural progression during active service and/or ACDUTRA. The September 2013 opinion noted only that the "worsening of [the Veteran's] condition while [i]n service was caused by the natural progression of her condition and not aggravated by active military service." This opinion is not in accord with the standard of proof required for claims based on aggravation. 38 U.S.C.A. § 1111; VAOPGCPREC 3-2003; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The September 2013 opinion, as requested in the June 2013 remand, also failed to discuss "the service record dated in February 1997 in which the Veteran reported that she took medication for anemia, contrasted with records dated prior to February 1997 in which she noted that she did not take any medications." The examiner, as requested, also failed to "discuss a service treatment record dated in September 1997 in which the Veteran was diagnosed with 'severe anemia'." In light of the inadequacies of the September 2013 opinion as set forth above, the case must be REMANDED for the following action: 1. The AMC shall ask the VA physician who provided the September 2013 opinion (or other appropriate VA medical professional if this physician is not available) to provide an addendum opinion, or if the VA examiner determines that it is necessary, schedule the Veteran for an appropriate in-person VA examination, to ascertain the etiology of her currently diagnosed anemia. If an examination is scheduled, properly notify the Veteran of the examination by sending notice of the details of the examination to the Veteran at her correct address. Send the notice with sufficient time in advance to allow the Veteran to attend the examination. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. The examiner must state in the examination report that the claims folder, including the Veteran's lay statements, her National Guard records, her post-service treatment records, and the medical literature have been reviewed in forming the medical opinion. The VA examiner must offer opinions on the following: a) Did the Veteran's anemia clearly and unmistakably pre-exist her entry into active service and/or ACDUTRA? If such is this case, the examiner should clarify the record by citing the specific record or records used as a basis for this determination, to include an explanation of the meaning of any laboratory results used as a basis of this determination. If the examiner's conclusion is based on the laboratory values listed on the April 1987 private treatment record, the examiner should so state and explain the significance of any laboratory value. The examiner is also asked to reconcile the conflicting VA opinion dated in April 2009 in which a VA examiner reviewed the claims file and determined that there was no evidence of the existence of anemia prior to active service or during active service. b) If there is clear and unmistakable evidence that the anemia pre-existed a period of active service and/or ACDUTRA, is there clear and unmistakable evidence (evidence that is obvious and manifest) that the anemia was not aggravated beyond its natural progression during this period of active service and/or ACDUTRA? In reaching any conclusion, the examiner is asked to discuss the service record dated in February 1997 in which the Veteran reported that she took medication for anemia, contrasted with records dated prior to February 1997 in which she noted that she did not take any medications. Further, the examiner should discuss a service treatment record dated in September 1997 in which the Veteran was diagnosed with "severe anemia." c) If the examiner determines that there is not clear and unmistakable evidence that the anemia pre-existed active service and/or an ACDUTRA period, is it at least as likely as not (a probability of at least 50 percent or more) that her anemia was incurred during a period of active service and/or ACDUTRA? The VA examiner is asked to note the different standards of proof. The term "as likely as not" does not 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. In comparison, "clear and unmistakable evidence" means "with a much higher certainty than 'at least as likely as not' or 'more likely than not.'" 2. The AMC is to review the medical opinion to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall, supra. 3. After completing the above action and any other development as may be indicated, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant 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 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. 2013). _________________________________________________ MARJORIE A. AUER 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) (2013).