Citation Nr: 1817108 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 12-02 754A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for immunity disorder, to include Lupus, to include as due to an undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C.A. § 1117. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from September 1987 to September 1991, including service in the Southwest Asia Theatre of operations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In November 2016, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the electronic record. At that time, the Veteran submitted additional medical evidence along with a waiver of RO consideration of such evidence. As such, the Board may properly consider this evidence. In a May 2015 rating decision, the RO denied service connection for metastatic squamous cell carcinoma (claimed as lymph node cancer). In April 2016, the Veteran submitted a notice of disagreement (NOD) with respect to this decision. The RO has not issued a statement to the case with respect to this matter. However, the electronic Veterans Appeals Control and Locator System (VACOLS) also noted receipt of the NOD as to this claim. As VACOLS indicates additional action is pending at the RO, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. As VACOLS reflects that the NOD has been recognized and that additional action is pending, Manlincon is not applicable at this time. In March 2017, the Board dismissed the issues of entitlement to an earlier effective date for service connection for chronic diarrhea and tension headaches, awarded service connection for chronic fatigue syndrome, denied entitlement to service connection for an immunity disorder, and remanded the remaining issues for further development. Thereafter, the Veteran appealed the decision denying service connection for an immunity disorder to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Partial Remand (JMR), the Secretary of VA and the Veteran (the parties) moved the Court to vacate the March 2017 decision with respect to this issue, which was granted in an October 2017 Order. The issues that were previously remanded in March 2017 have not been recertified to the Board. As such, they will be addressed in a subsequent Board decision if necessary. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, the JMR determined that the Board did not adequately support its finding that the Veteran was not entitled to presumptive service connection under 38 C.F.R. § 3.317 because his disorder had been diagnosed as Lupus. The Board relied on an October 2014 VA examination with opinion that found the Veteran's immunity disorder was Lupus, which was a hereditary or congenital condition. However, in light of the findings of the JMR, the Board finds that another VA examination is necessary. Moreover, in light of the need to remand, the AOJ should take additional steps to obtain any outstanding private and VA clinical records Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an opportunity to identify and/or submit any private treatment records that have not already been associated with the record. Also, obtain all of the Veteran's outstanding VA treatment records. 2. After all outstanding records have been associated with the record, schedule the Veteran for a VA examination by to determine the nature and etiology of the Veteran's claimed immunity disorder. The examiner should review the claims file. The examiner should identify any objective evidence of the Veteran's claimed immunity disorder; render a diagnosis with respect to each claimed symptom that is due to a known clinical diagnosis, to include Lupus; and, provide an opinion with respect to each currently diagnosed disorder as to whether it is at least as likely as not that the disorder is etiologically related to the Veteran's service, to include his service in the Southwest Asia Theatre of operations. The examiner should also specifically identify any objectively demonstrated symptoms that are not attributable to a known clinical diagnosis and whether such constitute a medically unexplained chronic multisymptom illness. The examiner should further indicate whether such disabilities existed for 6 months or more or whether they exhibit intermittent worsening over a 6 month period. The examiner should also determine whether the Veteran's immunity disorder constitutes a congenital or developmental defect or a disease (per VAOPGCPREC 82-90, in general, a congenital abnormality that is subject to improvement or deterioration is considered a disease). If the disorder is considered a defect, was there additional disability due to disease or injury superimposed upon such defect during service? If so, please identify the additional disability. If the disorder is a disease, was it aggravated beyond the natural progression during his military service? Aggravation indicates a permanent worsening of the underlying condition as compared to a temporary increase in symptoms. The examiner should provide the supporting rationale for each opinion expressed with consideration of the medical and lay evidence of record. 3. Readjudicate the appeal. 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. §§ 5109B, 7112 (2012). _________________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).