Citation Nr: 1417288 Decision Date: 04/17/14 Archive Date: 05/02/14 DOCKET NO. 08-17 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for chronic inflammatory demyelinating polyneuropathy, to include as due to service-connected hysterectomy, claimed as Guillain-Barre Syndrome. 2. Entitlement to service connection for diabetes mellitus, type II, claimed as due to chronic inflammatory demyelinating polyneuropathy. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Alicia R. Bordewyk INTRODUCTION The Veteran had active service from October 1980 to June 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2007 and February 2009 rating decisions issued by the Department of Veterans Affairs (VA), Regional Office (RO), in Nashville, Tennessee. In September 2009, the Veteran testified at a video conference hearing over which the undersigned Acting Veterans Law Judge presided. A transcript of that hearing has been associated with his claims file. This matter was previously before the Board in July 2010 at which time it was remanded for additional development. It is now returned to the Board. The Board notes that the issues on appeal had previously included service connection for naval removal and service connection for depression. However, during the pendency of this appeal, by rating action dated in March 2012, service connection for both issues was established. As this represents a complete grant of the benefits sought on appeal, the issues are no longer on appeal before the Board. The issue of whether there was clear and unmistakable error in a March 2012 rating decision pertaining to depression has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. In addition to the paper claims file, 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. Unfortunately, the development requested in the July 2010 Remand has not yet been completed. Accordingly, the appeal is REMANDED to the agency of original jurisdiction. VA will notify the appellant if further action is required. REMAND The February 2012 VA examination and addendum obtained pursuant to the Board remand is inadequate as the opinion offered did not include a rationale and did not take the Veteran's reports into consideration. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion is inadequate unless supported by a rationale); Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). In addition, the examiner did not opine as to whether the Veteran's chronic inflammatory demyelinating polyneuropathy was incurred as a result of vaccinations received during service, despite noting that some vaccinations could be etiologically related. As such, the claim must be remanded in order to obtain an adequate opinion. The claim for service connection for diabetes is inextricably intertwined with the issue of service connection for chronic inflammatory demyelinating polyneuropathy, and thus, must also be remanded. Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for her asserted disabilities should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The agency of original jurisdiction shall obtain all outstanding VA medical records and associate them with the paper or virtual claims file. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile. 2. Once the above development has been completed, the agency of original jurisdiction shall provide the Veteran with a VA examination with a qualified physician to determine whether current chronic inflammatory demyelinating polyneuropathy, claimed as Guillain-Barre Syndrome, is directly related to service or is proximately related to a service-connected disability, to include service-connected hysterectomy. The claims file, including this remand and any relevant records contained in the virtual systems, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner is directed to provide an opinion as to the following: (i) Whether it is at least as likely as not that current chronic inflammatory demyelinating polyneuropathy, claimed as Guillain-Barre Syndrome, had onset in service or is otherwise related to a disease or injury in service. (ii) Whether it is at least as likely as not that the Veteran's chronic inflammatory demyelinating polyneuropathy was caused by a service-connected disability, to specifically include the service-connected hysterectomy. (iii) Whether it is at least as likely as not that the Veteran's chronic inflammatory demyelinating polyneuropathy is aggravated (permanently worsened) by a service-connected disability, to specifically include the service-connected hysterectomy. If the examiner states the chronic inflammatory demyelinating polyneuropathy is aggravated by a service-connected disability, although not directly caused by it, the examiner should indicate the degree of additional impairment caused by such disability beyond the natural progress of the disease prior to the impairment, in terms conforming to the rating schedule. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for the asserted disabilities in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 3. The agency of original jurisdiction will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claims adjudication. 4. The agency of original jurisdiction will then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and her representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until she is so informed. She 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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). _________________________________________________ DEMETRIOS G. ORFANOUDIS 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) (2013).