Citation NR: 9623486 Decision Date: 08/19/96 Archive Date: 08/30/96 DOCKET NO. 94-40 469 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for the cause of the veteran’s death. 2. Entitlement to service connection for human immunodeficiency virus (HIV) infection, for accrued benefits purposes. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The veteran, who had active service from October 1982 to April 1985, died on December [redacted], 1993. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a March 1994 rating decision of the St. Petersburg, Florida Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which denied service connection for the cause of the veteran’s death, as well as service connection for HIV infection, for accrued benefits purposes. REMAND Service medical records of the veteran reflect that she sustained a gunshot wound to the head in January 1985, resulting in a subsequent left suboccipital craniectomy and debridement of the left cerebellar. Coincidental with such surgery, the veteran was transfused with four units of packed red blood cells, and was also given “some” frozen plasma and platelets. Unfortunately, no additional records from the private medical facility where these procedures were performed are available. Service medical records contain no laboratory findings indicative of nor a diagnosis of HIV infection. Service connection for residuals of such gunshot wound to the head was granted by an April 1986 rating decision, to include left seventh nerve paralysis, incomplete paralysis of the left upper extremity, epiphora of the left eye, left temporomandibular joint dysfunction, excision of the left facial sinus, speech impairment and residual scarring. The appellant did not request service connection for HIV infection, claimed as a residual of the abovementioned in- service blood transfusion, until June 1991. At that time, she reported that she was initially diagnosed HIV positive in 1985 at George Air Force Base Hospital (George), with current VA medical treatment for said disorder. Service connection for HIV infection was denied by a July 1992 rating decision, and the veteran expressed timely disagreement therewith. Unfortunately, the veteran died in December 1993, while this case was in preparation for appellate review. The death certificate indicated that she died at her home due to acquired immune deficiency syndrome (AIDS). However, in several statements submitted to the RO prior to her death, she reported that had initially tested positive for HIV infection at George in 1985, with a second test confirming this diagnosis performed in 1987 at Little Rock Air Force Base Hospital (LRAFBH). In this regard, the veteran reported that relevant treatment at LRAFBH was managed by a HIV nurse, and that such nurse maintained all her medical treatment records as well. Finally, the veteran indicated that she did not received any relevant medical treatment for HIV until 1991, following a period private inpatient (INP) care. In February 1994, the appellant filed an initial applicant for entitlement to service connection for the cause of the veteran’s death, to include entitlement to service connection for HIV infection, for accrued benefits purposes, which was denied by a March 1994 rating decision. The appellant was notified of this decision the following month, giving rise to this appeal. Medical records on file reflect that the veteran tested positive for the HIV infection during private INP treatment in May 1991, however, relevant blood testing results are not included in these records. Moreover, VA treatment records dated from 1991 indicate that the veteran was receiving treatment for HIV infection, to include AZT. Again, relevant blood testing results are not included with such records. Available records from the Little Rock Arkansas VA Medical Center dated in 1987 recently obtained by the RO do not include a diagnosis of HIV infection, however, no records of blood testing were included therein. It is unclear whether or not these are the records referred to by the veteran as being from LRAFBH. Finally, the record reflects that requested records from George have reportedly been “retired” due to closure of that facility, and there is no indication that the RO has attempted to determine where such records may have been forwarded. As such, the Board finds that additional development is necessary with respect to these claims prior to appellate review. A final attempt to secure all relevant records by appropriate methods must be accomplished by the RO. It is well established in the scientific literature that laboratory evidence of HIV infection, especially depressed CD4 (or T- cell) counts, is characteristically found eight to ten years following initial infection with HIV. Moreover, the classic symptoms associated with AIDS are also delayed for eight to ten years following infection and as such, the majority of HIV infected individuals would not be expected to come to medical attention until years after acquiring the infection. Therefore, all available laboratory testing results are necessary in this case. Additionally, a medical opinion regarding the etiology and date of onset of the veteran’s HIV infection/AIDS should be obtained. There is no opinion in this regard on file, and it is also necessary in this case. The Board regrets further delay with respect to the appellant’s claims, however, the current record has not been properly developed for appellate review. See Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990); Colvin v. Derwinski, 1 Vet.App. 171 (1991). It is therefore returned to the RO for the following developments: 1. In compliance with the provisions of 38 C.F.R. §§ 1.460-1.544 (1996), the RO should contact the VA Medical Centers in Orlando, Florida and Little Rock, Arkansas, and request complete copies of all pertinent medical treatment records of the veteran dated from 1985, specifically laboratory results from all clinical blood testing performed. Such request should include all three of the veteran’s names as noted in the caption at the top of each page of this document, as well as her social security number. All records pertaining to the diagnosis and/or treatment of HIV infection and AIDS should be requested, to include the administration of AZT. All pieces of correspondence, as well as any medical or treatment records obtained, should be made a part of the claims folder 2. In compliance with the provisions of 38 C.F.R. §§ 1.460-1.544 (1996), the RO should again attempt to obtain relevant records of the veteran, to include results from all laboratory testing, dated from 1985 from George Air Force Base Hospital. Such request should include the veteran’s maiden name and her first married name, as well as her social security number. As it is noted in the claims folder that this facility is closed and that such records are retired, the RO should attempt to obtain pertinent retired records by contacting alternative sources, including but not limited to the National Personnel Records Center and the Federal Records Retirement Center. All pieces of correspondence, as well as any medical or treatment records obtained, should be made a part of the claims folder. 3. In compliance with the provisions of 38 C.F.R. §§ 1.460-1.544 (1996), the RO should again attempt to obtain relevant records of the veteran, to include results from all laboratory testing, dated from 1987 from Little Rock Air Force Base Hospital. Such request should include the veteran’s maiden name and her first married name, as well as her social security number. If such records have been retired, the RO should attempt to obtain pertinent retired records by contacting alternative sources, including but not limited to the National Personnel Records Center and the Federal Records Retirement Center. All pieces of correspondence, as well as any medical or treatment records obtained, should be made a part of the claims folder. 4. After obtaining the appropriate signed authorization for release of information form from the appellant in accordance with the provisions of 38 C.F.R. §§ 1.468-1.544 (1996), the RO should contact West Lake Hospital, Longwood, Florida, and request copies of all pertinent inpatient and outpatient treatment records of the veteran, specifically, all laboratory records from clinical blood testing performed during inpatient treatment in May 1991. All records pertaining to the diagnosis and treatment of HIV infection should be requested. All pieces of correspondence, as well as any medical or treatment records obtained, should be made a part of the claims folder. 5. The RO should contact the appellant to determine whether he desires to submit any additional information in support of his claims, to include the names, addresses, and dates of treatment of any physicians, hospitals or treatment centers (private, VA or military) who provided the veteran with medical treatment not already reported to the RO or the Board. Specifically, the RO should request the appellant to provide additional information regarding reported medical treatment of the veteran from Florida Hospital in Orlando, Florida. After obtaining the appropriate signed authorization for release of information forms from the appellant, the RO should contact each physician, hospital, or treatment center specified by the appellant to obtain any and all medical or treatment records or reports relevant to the above mentioned claim. All pieces of correspondence, as well as any medical or treatment records obtained, should be made a part of the claims folder. If private treatment is reported and those records are not obtained, the appellant and his representative should be provided with information concerning the negative results, and afforded an opportunity to obtain the records. Id. 6. The RO should arrange for the veteran’s complete claims folder with all available medical records to be reviewed by a board-certified specialist in infectious diseases (including AIDS). The examiner should offer an opinion as to the etiology and date of onset of the veteran’s HIV infection. In particular, the examiner should offer opinions, with degree of medical probability expressed, as to whether the appellant’s HIV infection was attributable to (a) any disease, treatment or injury suffered during her active service; or (b) any disease, treatment or injury suffered after service; or (c) otherwise. Specifically, the examiner should provide a written opinion indicating whether the veteran’s HIV infection was more likely, equally likely, or less likely to have been incurred at the time of the in- service blood transfusions in January 1985. The examiner should identify the information on which she/he based their opinion. The opinion should adequately summarize the relevant history and clinical findings, including a discussion of the relationship between the veteran’s first documented CD4 or T-cell count and probable date of onset of HIV infection, and provide detailed explanations as to all medical conclusions rendered. The opinion should also allocate the appellant’s various symptoms and manifestations to the appropriate diagnostic entity. Finally, the examiner should indicate whether or not the appellant exhibited any signs of HIV infection prior to May 1991. If these matters cannot be medically determined without resort to mere conjecture, this should be commented upon by the examiner in the report. 7. The RO should review the abovementioned medical opinions and determine if they are adequate for rating purposes, and particularly, are in compliance with this Remand. If not, such reports should be returned for corrective action. 8. The RO should then readjudicate the issue of entitlement to service connection for the cause of the veteran’s death, and entitlement to service connection for HIV infection, for accrued benefits purposes, with consideration afforded to all applicable laws and regulations, and any evidence received pursuant to this Remand. In order to avoid undue delay in this case, the RO should make certain that the instructions contained in the REMAND, detailing the requested development, have, in fact, been substantially complied with. When this development has been completed, and if the benefits sought are not granted, the case should be returned to the Board for further appellate consideration, after compliance with appropriate appellate procedures, including issuance of a supplemental statement of the case. It is requested that this statement specifically set forth the reasons and bases for the decisions. No action by the appellant is required until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in these claims, pending completion of the requested development. MICHAEL D. LYON Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1995). - 2 -