Citation Nr: 20004446 Decision Date: 01/23/20 Archive Date: 01/21/20 DOCKET NO. 16-41 209 DATE: January 23, 2020 REMANDED Entitlement to service connection for a thoracolumbar spine disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for immune thrombocytic purpura, claimed as leukemia, is remanded. REASONS FOR REMAND The appellant served on active duty in the U.S. Army from June 1956 to May 1958. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, denied service connection for a back disability, hypertension, and leukemia. The appellant was afforded a hearing by videoconference before the undersigned in May 2017. A transcript is of record. The Board denied the issues of service connection for thoracolumbar spine disability, hypertension, and immune thrombocytic purpura in February 2019. The appellant appealed the Board’s decision to the U.S Court of Appeals for Veterans Claims (Court). In August 2019, the appellant’s then-representative and the VA General Counsel filed a Joint Motion for Partial Remand. In September 2019, the Court granted the Joint Motion, and remanded the case to the Board for readjudication consistent with the Joint Motion. In such Joint Motion, the parties agreed that new VA examinations, conducted by a physician with appropriate expertise, should be scheduled upon remand. With respect to the September 2018 examination for immune thrombocytic purpura, while such was conducted by a physician, the negative etiological opinion was based on a lack of medical records prior to 2004 regarding low platelets, bruising, and/or bleeding. The October 2018 hypertension examination was conducted by a nurse practitioner. The negative etiological opinion rendered was based on a lack of documentation of symptoms or treatment in service. A physician’s assistant conducted the October 2018 thoracolumbar spine examination. The negative etiological opinion was based on a lack of evidence, aside from the appellant’s lay statements, with respect to a continuity of symptomatology, and also based on an inaccurate factual premise that the appellant injured his back while working in 1975 and did not experience back pain prior to such injury. Rather, it was noted that the appellant underwent back surgery in or about 1975 as he had had some back injuries at work prior to such time. Again, the Board observes that the appellant’s service treatment records (STRs) were lost in a fire at the National Personnel Records Center (NPRC). The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the Court declined to apply an “adverse presumption” where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant’s allegation of injury or disease in service in these particular cases). Further, the Federal Circuit has held that a medical opinion which relies on the absence of contemporaneous medical evidence, and fails to consider whether lay statements present sufficient support of the etiology of the claimed disability, is inadequate. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Again, the Joint Motion directed that the appellant be afforded new VA examinations for his claims of service connection for thoracolumbar spine disability, hypertension, and immune thrombocytic purpura, claimed as leukemia, and that such examinations be conducted by physicians with appropriate expertise. As such, the matters are remanded in order for the appellant to be afforded such examinations. See Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Arrange for a physician, with appropriate expertise, to conduct a VA examination as to the nature and etiology of the appellant’s current lumbar spine disability. The claims file must be made available to the examiner. After examining the appellant and reviewing the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that his current lumbar spine disability is causally related to his active service or any incident therein. In addressing the above, the examiner must consider and discuss all relevant medical and lay statements, to include the appellant’s statements that (a) during active duty, while loading artillery, he heard a crack in his back, saw a medic and was treated with aspirin; (b) his back pain continued after service and he self-treated it with aspirin; and (c) he underwent L3, L4, and L5 fusion surgery in 1978. The examiner is advised that although the appellant’s service medical records are unavailable due to a 1973 fire at the National Personnel Records Center, he is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. The examiner is also informed that the Federal Circuit has held that a medical opinion which relies on the absence of contemporaneous medical evidence, and fails to consider whether lay statements present sufficient support of the etiology of the claimed disability, is inadequate. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). A complete, clearly-stated rationale for the conclusions reached, must be provided. 2. Arrange for a physician, with appropriate expertise, to conduct a VA examination as to the nature and etiology of the appellant’s current hypertension. The claims file must be made available to the examiner. After examining the appellant and reviewing the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that his current hypertension is causally related to his active service or any incident therein. In addressing the above, the examiner must consider and discuss all relevant medical and lay statements, to include the appellant’s statements that he was prescribed blood pressure medication in service to enable him to travel overseas to Panama and his statements that after service separation, he treated himself with garlic water. The examiner is advised that although the appellant’s service medical records are unavailable due to a 1973 fire at the National Personnel Records Center, he is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. The examiner is also informed that the Federal Circuit has held that a medical opinion which relies on the absence of contemporaneous medical evidence, and fails to consider whether lay statements present sufficient support of the etiology of the claimed disability, is inadequate. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). A complete, clearly-stated rationale for the conclusions reached, must be provided. 3. Arrange for a physician, with appropriate expertise, to conduct a VA examination as to the nature and etiology of the appellant’s immune thrombocytic purpura. The claims file must be made available to the examiner. After examining the appellant and reviewing the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that his immune thrombocytic purpura is causally related to his active service or any incident therein. In providing the requested opinion, the examiner should reference to the pertinent evidence of record, to include the appellant’s testimony that he developed symptoms such as head sores and easy bruising in service which he believes represented the onset of his immune thrombocytic purpura. The examiner is advised that although the appellant’s service medical records are unavailable due to a 1973 fire at the National Personnel Records Center, he is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. (Continued on the next page)   The examiner is also informed that the Federal Circuit has held that a medical opinion which relies on the absence of contemporaneous medical evidence, and fails to consider whether lay statements present sufficient support of the etiology of the claimed disability, is inadequate. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). A complete, clearly-stated rationale for the conclusions reached, must be provided. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Behlen, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.