Citation Nr: 21023120 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 18-25 336 DATE: April 20, 2021 REMANDED Entitlement to a compensable rating for immune disorder NOS (evolving lupus) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2000 to June 2013. He previously testified at a June 2019 Board hearing by a Veterans Law Judge who has since retired. In a February 2021 correspondence, the Veteran was offered another opportunity to request a new hearing within 30 days. Since the expiration of the 30 days, the Veteran has not responded to express his desire for a new hearing with another Veterans Law Judge. Therefore, the Board will proceed to adjudicate the appeal. This matter is on appeal from an April 2017 rating decision and was previously remanded by the Board in September 2020. The Veteran is currently seeking a higher rating for his service-connected immune disorder, currently identified as lupus. However, upon review of the record, the Board finds that a remand is necessary for additional development. By way of history, the Veteran was initially granted service connection for lupus by an April 2017 rating decision at a noncompensable rating, effective August 2, 2016. The Veteran then timely filed a Notice of Disagreement for a higher rating. The Veteran submitted private treatment records dating between 2016 and 2017 from Dr. R.H., showed that he had sought medical attention for a nonspecific immunologic disorder. The Veteran reported flares of symptoms, including bilateral foot pain. At his February 2017 VA examination for his immune disorder, the examiner noted that the Veteran was on continuous medication for his condition and noted that the Veteran was no symptomatic. At his June 2019 Board hearing, he testified that he had also been seeking medical attention from Dr. Kendall, a specialist in Atlanta, who had been running several tests and compiling reports on the Veteran’s symptoms. He reported difficulty with pain, stiffness, and fatigue, which had been symptomatic for several years. Since the beginning of 2012, he recalled swelling in his hands, severely affecting his ability to exercise. By 2013, his muscle pain and chronic fatigue prevented him from other physical activities and has prevented him from getting into shape. Despite medication such as Hydroxychloroquine, he has seen minimal reduction in pain and fatigue. When the matter came to the Board in September 2020, it was remanded to afford the Veteran a new VA examination to assess the severity of the Veteran’s lupus and obtain pertinent medical records. Based on his October 2020 VA examination report, it was noted that the Veteran has evolving lupus. Over the past 12 months, the Veteran’s treatment plan did not include oral or topical medications. The Veteran told the physician that he was placed on hydroxychloroquine for a year but stopped taking it due to gastrointestinal side effects. The Veteran indicated that he was not currently under the care of a rheumatologist but was seeing a mitochondrial and genetics specialist, Dr. Kendall in Atlanta for work up. She prescribed various vitamins or mineral supplements for his symptoms. Upon evaluation, the examining physician found that the Veteran did not have exacerbations of an autoimmune disease. His condition did not produce severe impairment of his heath nor did it cause cutaneous manifestations including systemic, cutaneous or discoid lupus erythematosus. Furthermore, there were no renal, cardiac, gastrointestinal, vascular, or neurologic manifestations of his autoimmune disease. The examination physician noted that the Veteran made subjective reports of weight gain, muscle fatigue/pain, and mouth ulcers. In conclusion, she indicated that the Veteran’s symptomatology reported appeared to be related to the non-specific autoimmune condition, but that his diagnosis is still evolving. Additional work-up and results are pending to further establish the correct specific etiology for the unspecified immune condition symptoms that the Veteran is experiencing. Due to financial issues, the Veteran was not able to follow up with Dr. Kendall, despite the physician’s request to conduct more tests. The examining physician also noted that Dr. Kendall’s reports were not provided to her. Thus, she was only able to base her report on the Veteran’s physical examination and his current medical treatment records. In a September 2020 and December 2020 correspondence, VA sent the Veteran a VA Form 21-4142 and VA Form 21-4142a, so that he may provide the proper the authorization for his medical records. As of date, VA has not received a response from the Veteran. However, the record strongly suggests that additional medical records are necessary to accurately determine the current severity of the Veteran’s condition. The current record shows that his autoimmune disorder is evolving and suggests that his condition may be worse than it is currently depicted. Moreover, the October 2020 examining physician suggested that the Veteran’s private treatment records be obtained to be evaluated. Therefore, the Board finds that remand is warranted so that another attempt may be made to obtain the Veteran’s private treatment records. The Board notes that correspondence from the Veteran’s attorney received March 2021 requests an update on the status of this claim. The record also indicates that a copy of the January 2021 Supplemental Statement of the Case (SSOC) was returned as undeliverable to the Veteran’s attorney. While VA has successfully sent correspondence to the Veteran’s attorney at an address in Parkersburg, West Virginia, the January 2021 SSOC was mailed instead to an address in Charlotte, North Carolina. On remand, the RO should ensure a copy of the January 2021 SSOC has been sent to the Veteran’s attorney at the Parkersburg, West Virginia, address. Finally, VA treatment records were last associated with the claims file in September 2020 but only reflect treatment through June 22, 2019. While the Veteran indicated during his October 2020 VA examination that he was not currently treated by a rheumatologist, notes from early March 2019 indicate the Veteran was scheduled to see a rheumatologist on March 26, 2019. On remand, the RO should obtain updated VA treatment records, to include any records pertaining to a March 26, 2019, appointment with a rheumatologist. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records, to include any information pertaining to a scheduled March 26, 2019, appointment with rheumatology. 2. Send the Veteran and his representative another copy of the VA Form 21-4142 and VA Form 21-4142a, so that records may be obtained from Dr. Kendall, the Atlanta specialist reference by the Veteran’s attorney during the June 2019 Board hearing and by the Veteran during his October 2020 VA examination. All efforts to obtain these records should be documented and any negative response should be recorded in the claims file. 3. If the Veteran responds, assist him in obtaining any evidence he identified and associate them with the claims file. If the records are not obtained, notify the Veteran and explain the efforts taken to obtain them. 4. After all records and/or responses received from the contacted entity have been associated with the claims file, arrange for the Veteran to undergo a new VA examination, by an appropriate physician to evaluate the current severity of the Veteran’s immune disorder (evolving lupus). In doing so, the examiner should complete the following: Consider the Veteran’s overall medical records, including private treatment records regarding his service-connected immune disorder. Clearly identify, and provide comment as to the extent, frequency and/or severity of all symptoms and manifestations, and exacerbations of the Veteran’s service-connected immune disorder. The examiner should describe the functional effects of the Veteran’s disability on his activities of daily living, to include employment. All examination findings/testing results, along with complete, clearly stated rationale for the conclusions reached must be provided. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Yeh, 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.