Citation Nr: 1535528
Decision Date: 08/19/15 Archive Date: 08/31/15
DOCKET NO. 04-31 044 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California
THE ISSUES
1. Entitlement to an evaluation for beta thalassemia minor in excess of 30 percent.
2. For purposes of compliance with a prior Board decision, entitlement to an evaluation for beta thalassemia minor in excess of 10 percent for the period prior to July 19, 2011.
3. Entitlement to a total disability rating based on individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. Juliano, Counsel
INTRODUCTION
The Veteran served on active duty from August 1968 to August 1971 and from
March 1973 to March 1975.
These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision by the Department of Veterans Affairs (VA) Regional
Office (RO) in Los Angeles, California, that denied entitlement to an evaluation in excess of 10 percent for beta thalassemia minor.
The Veteran requested a Travel Board hearing on his substantive appeal, but later withdrew his request in writing in September 2004. Therefore, his request is considered withdrawn, and this matter is ready for further review.
In May 2009, the Board remanded the Veteran's claim for further development.
In July 2011, the Board granted entitlement to a higher 30 percent rating for the Veteran's beta thalassemia minor for entire period on appeal, and remanded the issue of entitlement to an even higher rating, and entitlement to a TDIU, for further development.
Subsequently, a July 2011 rating decision assigned the increased 30 percent rating to effectuate the Board decision, but erroneously assigned an effective date of July 19, 2011 (the date of the Board decision) rather than assigning the higher rating for the entire period on appeal. Therefore, the Board has added to this case the issue of entitlement to an evaluation for beta thalassemia minor in excess of 10 percent for the period prior to July 19, 2011 - but only for purposes of compliance with the prior Board decision.
In July 2012, the Board again remanded the rating and TDIU claims for further development. Such development has been completed and associated with the claims file, and these matters are returned to the Board for further review.
This appeal was processed using the Virtual VA and VBMS paperless claims processing systems. Accordingly, any future consideration of the appellant's case should take into consideration the existence of these electronic records.
The issue of whether new and material evidence has been submitted sufficient to reopen a claim of entitlement to service connection for a bilateral knee condition, including osteoarthritis, as secondary to service-connected beta thalassemia minor, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this matter, and it is referred to the AOJ for appropriate action. See Brief, May 2008; see also VA treatment record, May 2008.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
A July 2011 Board decision awarded a 30 percent increased rating for the Veteran's beta thalassemia minor for the entire period on appeal. The Veteran seeks an even higher rating. He also seeks entitlement to a TDIU.
With regard to the 10 percent rating in effect prior to July 19, 2011, this appears to be the result of an administrative error by the RO. The July 2011 Board decision awarded an increased 30 percent rating for the Veteran's beta thalassemia minor for the entire period on appeal. Subsequently, however, the July 2011 rating decision effectuating the Board decision only assigned the 30 percent rating effective July 19, 2011, the date the Board decision was entered.
Under 38 C.F.R. § 20.1100, with few exceptions, "all Board decisions are final on the date stamped on the face of the decision." It is well settled that final Board decisions must be complied with by the RO. The M21-1, III.iv.2.B.5.b, provides that "unless overruled by the CAVC, BVA decisions are final and binding on the Veterans Benefits Administration decision makers." The same is true regarding compliance by the RO with Board remands. See Stegall v. West, 11 Vet. App. 268 (1998) ("a remand by . . . the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand").
Therefore, this matter is remanded so that the RO will correct the effective date of the 30 percent rating award to the date the Veteran's claim was filed, i.e., January 29, 2003 (stamped-received date). See 38 C.F.R. § 3.400 (2015). In other words, the RO must assign an effective date of January 29, 2003 for the increased 30 percent rating. The Board adds this was the first correspondence received from the Veteran since 1997.
The Board emphasizes that "a remand by . . . the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand." See Stegall v. West, 11 Vet. App. 268 (1998).
With regard to entitlement to a disability rating in excess of 30 percent for the entire period on appeal, most recently, in July 2012, the Board remanded the Veteran's claim so that either a VA medical opinion or a new VA examination could be obtained based on a review of the claims file, because it was not clear whether the March 2010 VA examination (with March 2010 and August 2011 addenda) included a review of the claims file. The Veteran was subsequently afforded a new VA examination in November 2013. The VA examiner reviewed the claims file, and noted, among other things, that "microcytic anemia and splenomegaly are the only objectively verifiable sequelae of the Veteran's beta thalassemia," which anemia was noted as "mild," the Veteran's occupational impairment was "fairly minimal," and that the "cumulative functional impairment from beta thalassemia, splenomegaly, and microcytic anemia is mildly diminished exercise tolerance capacity."
Recently, however, in March 2015, the Veteran wrote his activity levels had dropped to two to three days per week. The Board notes that the schedular criteria for the next higher 60 percent rating under Diagnostic Code 7714, sickle cell anemia, contemplate either painful crises several times a year, or with symptoms precluding other light manual labor. See 38 C.F.R. § 4.118 (2015). Therefore, as the Veteran has alleged that his condition has worsened, and because it is unclear whether his ability to perform light manual labor has been affected, this matter should be remanded to afford the Veteran a new VA examination to address the current severity of his beta thalassemia minor. The VA examiner should also address his TDIU claim.
In addition, the Board notes that there are several records of correspondence in the claims file between the Veteran and the RO regarding the Veteran's places of VA and non-VA treatment, and the Veteran identified several places of treatment, but it was unclear from his statements whether all of these facilities involved treatment since 2002 (the year prior to the filing of his increased rating claim). In December 2005, the RO sent a letter to the Veteran requesting that he clarify all places of treatment since 2002. In December 2005, the Veteran responded he was treated at the Lancaster, Sepulveda, and Loma Linda VA facilities. Regarding Loma Linda, the RO had already explained in December 2015 that the Veteran's only records at that facility relate to his May 2003 VA examination. Regarding the Lancaster and Sepulveda VA facilities, these records are all in the claims file, as well as all of his VA treatment records from the Antelope and West Los Angeles (Wadsworth) VA facilities dated through June 2014.
The Veteran also identified Tricare treatment at Edwards AFB (since 2002), which records have also been associated with the claims file dated through May 2006. As no records dated since May 2006 have been associated with the claims file (a period of over nine years), on remand, all of the Veteran's more recent Tricare treatment records dated since May 2006 should be obtained.
Regarding the Veteran's reported treatment at the San Juan Vet Center, the Board notes by way of background that the Veteran never specified that these records related to treatment since 2002 in response to the RO request for clarification. Regardless, the records were requested by the RO, and in October 2007, a negative reply was received, which response letter noted that a request for records could be made to the San Juan VA medical facility. The Veteran, however, was never notified of this negative response. See also deferred rating, April 2010. Therefore, on remand, the RO should notify the Veteran that a negative response was received in October 2007 from the San Juan Vet Center, and the Veteran should be asked to clarify whether he received treatment at the San Juan VA medical center for his beta thalassemia minor since 2002.
Also, the Veteran asserted in July 2006 correspondence that an ultrasound performed by VA around June 2006 revealed an enlarged spleen and liver. See also VA treatment records, April 2006 and June 2006 (noting splenomegaly shown on ultrasound), and VA ultrasound report, November 2012 (showing enlarged liver - see VVA at 55). A copy of this 2006 ultrasound report, however, has not yet been associated with the claims file. Therefore, on remand, a copy of any outstanding VA ultrasound report relating to the Veteran's spleen and liver dated around June 2006 should be associated with the claims file.
As a final matter, the October 2008 statement of the case (SOC) reflects a review of the Veteran's VA treatment records dated through June 2008. The February 2011 SSOC does not note any additional treatment records were reviewed. Then, the February 2015 SSOC reflects VA treatment records dated from 2011 to 2014 were reviewed. Thus, possibly merely as an oversight, review of all of the Veteran's VA treatment records dated between June 2008 and 2010 was never noted in any of the SSOCs. Therefore, on readjudication by the RO, a review of all of the Veteran's VA treatment records associated with the claims file dated since June 2008 should be noted.
Accordingly, the case is REMANDED for the following action:
1. Assign an effective date of January 29, 2003 for the increased 30 percent rating for the Veteran's beta thalassemia minor in compliance with the final July 2011 Board decision.
If and only if there is a failure to comply with this particular remand directive to assign the effective date of January 29, 2003, for the 30 percent rating, only then should this matter of entitlement to an evaluation in excess of 10 percent for the period prior to July 19, 2011, be returned to the Board for further review.
2. Associate with the claims file all of the Veteran's VA treatment records from Lancaster, Antelope, Sepulveda, and West Los Angeles (Wadsworth) VA facilities dated since June 2014.
Also, associate ALL of the Veteran's VA treatment records from the Loma Linda VA facility dated since 2002, if any. If there are none, this should be specifically noted in the claims file.
3. Associate with the claims file all of the Veteran's Tricare treatment records from Edwards AFB dated since May 2006.
4. Notify the Veteran that a negative response was received from the San Juan Vet Center in October 2007. Ask him to clarify whether he ever received treatment at the San Juan VA medical center since 2002. If so, associate these records with the claims file.
5. Associate with the claims file a copy of any VA ultrasound report for the Veteran's spleen and liver dated around June 2006, which was referenced by the Veteran in July 2006 correspondence. See also VA treatment records, April 2006 and July 2006.
6. After all of the above development has been completed, schedule the Veteran for a new VA examination with an appropriate specialist to address the current severity of his service-connected beta thalassemia minor, and regarding his claim for a TDIU. The claims folder must be made available to the examiner and pertinent documents therein should be reviewed by the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. A complete rationale for any opinions expressed should be provided.
Please ask the VA examiner to specify whether the Veteran's beta thalassemia minor is manifested by painful crises, and if so, whether they occur several times a year.
Also please ask the VA examiner to address the Veteran's symptomatology, if any, due to his splenomegaly noted by the November 2013 VA examiner. Also ask the VA examiner to address whether the Veteran's enlarged liver shown on ultrasound in November 2012 is symptomatic of his beta thalassemia minor, and if do, to address any symptoms therefrom.
Also please ask the VA examiner to interview the Veteran as to his education, training, and work history. The examiner should provide an opinion addressing the functional impairment caused by the Veteran's service-connected beta thalassemia minor - and his service-connected tinea versicolor - with regard to his ability to perform tasks, including sedentary and physical tasks. The examiner should also specifically explain whether the Veteran's beta thalassemia minor symptoms preclude other than light manual labor.
7. Then, readjudicate the claims of entitlement to an evaluation in excess of 30 percent for beta thalassemia minor, and of entitlement to a TDIU. The SSOC should note that all of the Veteran's VA treatment records associated with the claims file dated since June 2008 were reviewed. If any of these claims remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, these claim should be returned to the Board for further review.
The appellant has the right to submit additional evidence and argument on the matter 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).
_________________________________________________
BETHANY L. BUCK
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) (2014).
https://www.va.gov/vetapp15/Files4/1535528.txt?fbclid=IwAR0zf01AFQ0t7NlYFXBM9nH5u59hOOLiD20Yao0BcT_665gDM4IXFWpMrSI