PREC 14-98    Issues Raised by Joint Remand Motion: Presumption of Aggravation for Chronic Diseases; Removal of Documents from Claims File; Validity of 38 C.F.R. § 20.903     Citation: Vet. Aff. Op. Gen. Couns. Prec. 1-98, VAOPGCPREC 1-98, 1998

QUESTIONS PRESENTED:

a(1).  Does 38 U.S.C. § 1112(a) establish a presumption of aggravation for a chronic disease which existed prior to service but was first shown to a compensable degree within the presumptive period following service?

a(2).  If it does, must the incremental degree of disability allegedly resulting from aggravation first shown during the presumptive period be itself compensable, or may aggravation be found by combining the degree of preservice disability with the degree of disability first presented during the presump­tive period?

b.  Is it lawful for an employee of the Board of Veterans’ Affairs (Board) to remove, temporarily or permanently, an opinion of a Board medical advisor from a veteran’s claims folder?  As an alternative, could the Board cover such an opinion in the claims folder with opaque paper?

c.  Is the Board required to provide directly to a represented veteran a copy of an opinion from an independent medical ex­pert?

HELD:

a.  Section 1112(a) of title 38, United States Code, does not establish a presumption of aggravation for a chronic disease which existed prior to service but was first shown to a com-

pensable degree within the presumptive period following ser-

vice.

b.  Where the Board of Veterans’ Appeals (Board) determines that it would be potentially prejudicial to a claimant for an independent medical expert to consider a Board medical advisor opinion which is in the claims file, the Board may temporarily remove that document from the claims file or temporarily cover the document with opaque paper prior to forwarding the file to the independent medical expert.  Such action would not, in our view, violate 38 U.S.C. § 7104(a) (requiring Board decisions to be based on the entire record) or 18 U.S.C. § 2071 (prohib­iting removal or concealment of Government records).  If it is determined that the Board is precluded from relying upon a Board medical advisor opinion due to the potential for preju­dice to the claimant, the Board may permanently remove the opinion from the claims folder without violating 38 U.S.C. § 7104(a).  Such removal would not, in our view, be unlawful under 18 U.S.C. § 2071 as violative of title 38 requirements.  If a claimant requests that a Board medical advisor opinion

be permanently removed from his or her claims file, the Board may permanently remove the opinion pursuant to 5 U.S.C. § 552a(d)(2) (permitting amendment of agency records that are not accurate, relevant, timely, or complete), and such action would not, in our view, violate 18 U.S.C. § 2071.

c.  The Board of Veterans’ Appeals is not required to transmit a copy of an independent medical expert opinion directly to a represented claimant.  Providing the opinion to the claimant’s representative, in accordance with 38 C.F.R. § 20.903, satis­fies the requirement in 38 U.S.C. § 7109(c) that the Board furnish the claimant with a copy of the opinion.