Citation Nr: 1800838 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 10-35 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for leukemia. REPRESENTATION Appellant represented by: American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Elliot Harris, Associate Counsel INTRODUCTION The Veteran had a period of active duty from June 1968 to June 1970. He had duty in Vietnam from October 1968 to October 1969. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This appeal was processed using the Legacy Content Manager Documents (formerly Virtual VA), and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Board finds the June 2011 VA examination inadequate to adjudicate the issue on appeal. VA's duty to assist a claimant includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A (d)(1) (2012); 38 C.F.R. § 3.159 (c)(4) (2017). To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131(West 2014); 38 C.F.R. § 3.303 (2017). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Veteran's most recent examination connected with the claim appears to be on March 2011. The claim has thus far been denied essentially on the basis that the leukemia diagnosed in this case did not appear within 1 year following separation from service, and is not the type of leukemia listed as presumed due to herbicide exposure by regulation. There is no specific opinion on file as to whether herbicide exposure may have contributed to the onset of the disorder at issue. As such, the record needs to be supplemented with such an opinion. In view of the need for additional development, the AOJ should contact the Veteran and request information as to any outstanding treatment records, lay statements, post-service VA or private treatment records, and employment health examinations. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and reports. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran to identify any pertinent private or VA treatment records that might be outstanding and associate them with the claims file including service treatment records (STR's), lay statements, post-service VA or private treatment records, and employment health examinations, and specifically include records of any ongoing leukemia treatments. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and reports. Follow proper notification procedures if the records are unobtainable. All attempts to obtain records should be set out in the claims folder. 2. Forward all records to a qualified specialist. The examiner must be given access to all records contained in Virtual VA and VBMS, and a notation must be made that review of all records has been accomplished. The examiner should review all the records and enter an opinion as to whether it is at least as likely as not (50 percent probability or higher) that the leukemia at issue in this case was caused by herbicide exposure in service, or is otherwise related to in-service occurrence or event. This opinion should include discussion of any pertinent studies or medical literature. It is not sufficient to say that it is unrelated to herbicide exposure solely on the basis that it is not in the pertinent regulation. If it is determined that an examination is needed, such examination should be scheduled in accordance with applicable procedures. This opinion should include discussion of whether this leukemia is in any way related to or similar to any B-cell leukemia, including but not limited to hairy-cell leukemia or chronic lymphocytic leukemia. A complete medical explanation of these matters is requested. 3. After undertaking any other appropriate development, the AOJ shall re-adjudicate the issue on appeal. If the AOJ does not fully grant the benefit sought, the AOJ should furnish the Veteran and his representative with a supplemental statement of the case and afford him an opportunity to respond thereto. 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 2014). _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2017).