Citation Nr: 21069802 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 16-12 281 DATE: November 19, 2021 REMANDED Entitlement to service connection for variegate porphyria is remanded. Entitlement to a rating in excess of 40 percent for residuals of thoracic spine compression fractures is remanded. REASONS FOR REMAND The Veteran had active service from November 1972 to October 1981. These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. A transcript of her testimony is of record. These matters were last before the Board in October 2020, when they were remanded for additional development. Regarding the issues on appeal, in March 2021 the RO issued a Statement of the Case (SOC) addressing the issue of entitlement to an increased rating for a right knee disability. The Veteran did not perfect an appeal of that issue. Therefore, although the RO included that issue in the July 2021 supplemental statement of the case (SSOC), that was an error, and that issue is not on appeal. 1. Entitlement to service connection for variegate porphyria is remanded. 2. Entitlement to a rating in excess of 40 percent for residuals of thoracic spine compression fractures is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives. The October 2020 remand directed that various records that had been scanned into VistA Imaging be associated with the claims file. While many of the VistA Imaging records were obtained, it does not appear that all the VistA Imaging records were obtained. Specifically, a December 17, 2009 VA record entry indicates that records from November 23, 2009 and November 30, 2009 had been scanned. A January 11, 2010 VA record entry indicates that a December 28, 2009 record had been scanned. A June 23, 2010 VA record entry indicates that unidentified chiropractor records were scanned. A July 13, 2011 VA record entry indicates that a July 2, 2007 fee basis record had been scanned. VA record entries from September 25, 2013 and November 6, 2013 indicate that a September 18, 2013 laboratory report for porphyrins had been scanned. A March 12, 2014 VA record entry indicates that a March 12, 2014 non-VA care consult report had been scanned. A May 14, 2014 VA record entry indicates that records from Mayo Medical from November 8, 1996, August 9, 1999, December 13, 1999, and January 11, 2000 had been scanned. A June 11, 2014 VA record entry indicates that a June 3, 2014 non-VA record had been scanned. As the records were scanned into VA's VistA Imaging record system requests must continue until the RO determines that the records sought do not exist or that further efforts to obtain them would be futile. As no such determination was made, there has not been substantial compliance with the prior remand directives and another remand is required. The evidence indicates there may be outstanding relevant VA treatment records. A July 2021 VA treatment record indicates that the Veteran was to return for follow up appointments on July 28, 2021 and August 18, 2021. VA treatment records after July 20, 2021 have not been associated with the claims file. A remand to obtain the outstanding records is required. Regarding the Veteran's porphyria claim, she asserts that she has porphyria that was triggered during service by exposure to various chemicals and/or aggravated by medication prescribed for her service-connected disabilities. The record contains conflicting evidence regarding whether the Veteran meets the diagnostic criteria for porphyria. Accordingly, the Board cannot make a fully informed decision without a medical opinion to determine whether the Veteran had porphyria and if so, whether it is related to service and/or a service-connected disability. Finally, additional VA records were associated with the claims file after the July 2021 SSOC and prior to the appeal being transferred to the Board. As these records were not considered in the July 2021 SSOC, they must be reviewed on remand. 38 C.F.R. §§ 19.31(b)(2), 19.37, (2020). The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated her for her claimed disabilities. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records dated since July 20, 21 as well as the VistA Imaging records referenced in the December 17, 2009, January 11, 2010, June 23, 2010, July 13, 2011, September 25, 2013, November 6, 2013, March 12, 2014, May 14, 2014, and June 11, 2014 VA record entries. If any such records are determined to be unavailable, issue a formal finding of unavailability and notify the Veteran of this fact. 2. After records development is completed to the extent possible, forward the claims file to an appropriate clinician to determine whether the Veteran has porphyria and if so, to obtain an opinion as to whether such is possibly related to service and/or a service-connected disability. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should provide an opinion as to: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran meets the diagnostic criteria for porphyria. Please explain why or why not. In so opining, the clinician should reconcile the conflicting medical evidence, including the June 22, 2016 record noting that "it is 100% certain she [the Veteran] does not have variegate porphyria and never did based on negative genetic and plasma fluorescence tests," the April 8, 2013 record noting that genetically there is no evidence of acute intermittent porphyria, hereditary coproporphyria, porphyria cutanea tarda, or variegate porphyria, the July 25, 1998, October 11, 2000, and December 12, 2012 statements from Dr. Morton indicating that the Veteran has porphyria, the April 4, 2005 statement from Dr. Gray indicating that the Veteran has porphyria, and the February 21, 2011 statement from Dr. Wolman indicating that the Veteran has porphyria. (b.) If the Veteran meets the diagnostic criteria for porphyria, state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's porphyria is due to a congenital abnormality. (c.) If it is due to a congenital abnormality, state whether it is a congenital defect (structural or inherent abnormalities or conditions which are more or less stationary in nature) or a congenital disease (condition considered capable of improving or deteriorating). (d.) If the porphyria is a congenital defect, state whether it was subject to a superimposed disease or injury during service with a resulting disability? Please explain why (with explanation as to what the resulting disability is) or why not. (e.) If the porphyria is a congenital disease, does the evidence of record show the condition underwent a permanent worsening of the underlying condition during service? If so, was that worsening undebatably the result of the natural progression of the condition (versus being the result of an event/injury/disease during service)? (f.) If the Veteran's porphyria is not due to a congenital abnormality, state whether it is at least as likely as not (50 percent probability or greater) that it arose during service or is otherwise related to service, including her reported in-service exposure to tear gas, exhaust, and hydraulic fluid. In so opining, the clinician should address the lay evidence from the Veteran and C. H. regarding the Veteran's in-service symptoms, tear gas exposure, and exposure to various chemicals, including aviation fuel, grease, and hydraulic fluid, during her duties as an avionics technician. The clinician should also address the Veteran's assertions that her in-service psychiatric and flu-like symptoms were manifestations of her porphyria. (g.) State whether it is at least as likely as not (50 percent probability or greater) that the porphyria was caused by any of the Veteran's service-connected disabilities (chronic obstructive pulmonary disease, dysthymic disorder, thoracic spine disability, bilateral knee arthritis, left ankle achilles tendonitis, hypertension, bilateral lower extremity radiculopathy, and laceration scar right lower leg) and/or any medication taken for a service-connected disability? (h.) If not caused by any service-connected disability or the medication taken therefore, is it at least as likely as not that the porphyria is worsened beyond natural progression (aggravated) by any service-connected disability (chronic obstructive pulmonary disease, dysthymic disorder, thoracic spine disability, bilateral knee arthritis, left ankle achilles tendonitis, hypertension, bilateral lower extremity radiculopathy, and laceration scar right lower leg) or any medication taken for a service-connected disability? If the examiner finds that the Veteran's porphyria was aggravated by any service-connected disability, the examiner should attempt to quantify the level of aggravation beyond the baseline level the porphyria. A complete rationale for all opinions expressed should be provided. 3. Thereafter, 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 should be allowed for response before the case is returned to the Board. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Anderson 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.