Citation Nr: 1802153 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-18 693 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for lupus erythematosus. 2. Entitlement to service connection for rheumatoid arthritis. 3. Entitlement to service connection for chronic thyroiditis (also claimed as Hashimoto's disease). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Navy from May 2000 to June 2006. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. The Veteran timely perfected an appeal to the Board. In the Veteran's January 2014 Substantive Appeal, she requested a Travel Board hearing before a Veterans Law Judge. The hearing was scheduled for February 2015, but the Veteran did not report to testify. Neither the Veteran nor her representative has offered good cause as to the Veteran's failure to report to the hearing. As such, the Board finds that the Veteran has waived her request for a hearing, and the issues are properly before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, remand is necessary to properly adjudicate the issues on appeal. The Veteran underwent a VA examination in May 2013, and her record was reviewed for a second medical opinion in January 2015 to assess the relationship between her service-connected hyperparathyroidism and the disabilities on appeal. The Veteran's May 2013 VA examination notes the onset of lupus, Hashimoto's disease, rheumatoid arthritis and hyperparathyroidism in 2005, which was during active duty service. Official diagnoses did not occur until after discharge. The Veteran reported that she experienced symptoms of the disabilities on appeal during active duty service, and reported those symptoms to medical personnel at the time. The May 2013 examination report, and the subsequent January 2015 medical opinion, do not address whether these disabilities were directly related to active duty service. Instead, the opinions concentrated on the lack of nexus between hyperparathyroidism and the autoimmune diseases. The present VA medical opinions of record are inadequate for adjudication as they do not address all theories of entitlement to service connection. In general, the Board has a duty to discuss all theories of entitlement reasonably raised by the record. See Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008). The Board must also consider all reasonably raised theories even if not specifically raised by the claimant. See Douglas v. Derwinski, 2 Vet. App. 435 (1992) (evidence reasonably raising a service-connection theory not specifically raised by the claimant must be considered in adjudicating a claim). In the context of a service connection claim, theories of entitlement such as direct service connection, secondary service connection and presumptive service connection are deemed as part of the appeal regardless of when the issue has been raised in the record. See Bingham, supra. Accordingly, a new VA examination is warranted to assess the etiological relationship between the disabilities on appeal and active duty service. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and her representative in order to identify any outstanding private treatment records regarding her disabilities on appeal. If private providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the private treatment records and associate them with the claims file. If such records cannot be obtained, inform the Veteran and her representative, and afford an opportunity for her to provide these outstanding records. 2. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). All attempts to contact the Veteran should be documented in the record. 3. Once the aforementioned development is complete, schedule the Veteran for a VA examination to determine the etiology of her lupus erythematosus, rheumatoid arthritis, and chronic thyroiditis (also claimed as Hashimoto's disease). The examiner must review the entire claims file, including a copy of this remand. The examiner should consider any and all lay statements regarding onset, observable symptomatology and past diagnoses. The examiner should opine as to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's lupus erythematosus began during active service, is related to an incident of service, or began within one year after discharge from active service? (b) If not, is it at least as likely as not (50 percent or greater probability) that the Veteran's lupus erythematosus was caused by or aggravated by her service-connected disabilities? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's rheumatoid arthritis began during active service, is related to an incident of service, or began within one year after discharge from active service? (d) If not, is it at least as likely as not (50 percent or greater probability) that the Veteran's rheumatoid arthritis was caused by or aggravated by her service-connected disabilities? (e) Is it at least as likely as not (50 percent or greater probability) that the Veteran's chronic thyroiditis (also claimed as Hashimoto's disease) began during active service, is related to an incident of service, or began within one year after discharge from active service? (f) If not, is it at least as likely as not (50 percent or greater probability) that the Veteran's chronic thyroiditis (also claimed as Hashimoto's disease) was caused by or aggravated by her service-connected disabilities? The examiner must provide all findings, along with a complete rationale for his or her opinion in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. The examiner should also identify what additional information or evidence (if any) may allow for a more definitive opinion. 4. Following completion of the foregoing, the AOJ should review the record and readjudicate the claims on appeal. If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and her representative an opportunity to respond, and return the case to the Board. (CONTINUED ON NEXT PAGE) 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). _________________________________________________ B. MULLINS 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).