Citation Nr: 1127805 Decision Date: 07/26/11 Archive Date: 08/02/11 DOCKET NO. 07-39 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for systemic lupus erythematosus (to include a skin disorder of the arms and shoulders, memory loss, blackouts, fatigue, malaise, weakness and loss of muscle mass secondary to disuse and cachexia), claimed as due to undiagnosed illness under 38 C.F.R. § 3.317. 2. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a bilateral shoulder disability and bilateral total hip replacement due to medical treatment by VA. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from March 1985 to March 1994, including service from August 1990 to March 1994 in support of Operations Desert Shield/Desert Storm. By rating action in August 1998, the RO, in part, denied service connection for systemic lupus erythematosus (to include a skin disorder of the arms and shoulders, memory loss, blackouts, fatigue, malaise, weakness and loss of muscle mass secondary to disuse and cachexia), claimed as due to undiagnosed illness. The Veteran and his representative were notified of this decision and did not appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 RO decision which, in part, found that new and material evidence had not been received to reopen the claim of entitlement to service connection for systemic lupus erythematosus, and a March 2006 decision that denied entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a bilateral shoulder disability and bilateral total hip replacement due to VA treatment. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Although further delay is regrettable, the Board finds that additional development must be accomplished prior to further consideration of the Veteran's appeal. In this case, the Veteran sought to establish service connection for multiple symptoms claimed as due to undiagnosed illness in November 1997, on the basis that he served two years overseas in Turkey. In March 1998, the RO advised the Veteran that his DD Form 214 did not show that he had qualifying service in the Gulf theater of operation (Southwest Asia), and requested that he provide VA with any information that showed he served in the Persian Gulf theater. That same month, the Veteran submitted a statement to VA in which he indicated that he would be sending information to verify his location and service overseas. To date, however, the Veteran has not provided the requested information. Thereafter, the RO confirmed through the National Personnel Records Center (NPRC) that the Veteran did not have qualifying service in the Persian Gulf theater. Parenthetically, to qualify for compensation based on an undiagnosed illness under 38 C.F.R. § 3.317, a "Persian Gulf Veteran" is defined as "a veteran who served on active military, naval or air service in the Southwest Asia Theater of Operations during the Persian Gulf War." 38 C.F.R. § 3.317 (d)(1) (2010). The "Southwest Asia Theater of Operations" includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(d)(2). Turkey is not one of the areas within the Southwest Asia Theater of Operations. In August 1998, the RO denied the Veteran's claim of entitlement to service connection for systemic lupus erythematosus (to include a skin disorder of the arms and shoulders, memory loss, blackouts, fatigue, malaise, weakness and loss of muscle mass secondary to disuse and cachexia), claimed as due to undiagnosed illness, on a direct basis given the absence of any signs or symptoms of the claimed disabilities in service or within one year of discharge from service. The Veteran and his representative were notified of this decision and did not appeal. At this point, the Board notes that the August 1998 RO decision considered and denied, implicitly the Veteran's claim under the presumptive regulations for undiagnosed illness, codified at 38 C.F.R. § 3.317, on the basis that he did not have qualifying service in the Southwest Asia Theater of Operations during the Persian Gulf War. The Veteran was advised in March 1998 that his service records did not show any qualifying service in the Persian Gulf theater, and he was provided ample opportunity to submit evidence to the contrary. He did not. The service records showed that he had one year and 10 months of foreign service, and that he was stationed in Turkey until November 1990, when he rotated back to the United States. Further, the Veteran does not claim, nor do the service records show, service in any of the specified areas in Southwest Asia under 38 C.F.R. § 3.317. See 38 C.F.R. § 3.317(d)(2). In August 2004, the Veteran requested, in part, to reopen his claim of service connection for multiple disabilities, again claimed as due to undiagnosed illness from his service during the Persian Gulf War. While the Veteran was provided with general notice of VA's duty to assist in the development of his claims by letter dated in September 2004, and was provided with the appropriate regulations in a statement of the case (SOC) promulgated in October 2007, he was not advised of the evidence necessary to reopen his previously denied claim under the holding in Kent v. Nicholson, 20 Vet. App. 1 (2006), prior to adjudication of his claim. Such VCAA notice cannot be satisfied by post-decisional documents such as an SOC. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). On remand, therefore, the Veteran should be provided with a duty-to-inform notice regarding his service connection claim that complies with the Veterans Claims Assistance Act (VCAA) and Kent. In this regard, it should be noted that the only evidence which would provide a basis to reopen the Veteran's claim, or for that matter, allow for de novo review of his claim under 38 C.F.R. § 3.317, would be evidence which would show that he served in the Southwest Asia Theater of Operations during the Persian Gulf War. Absent a showing of service in one of the specified areas, consideration of his appeal under 38 C.F.R. § 3.317 would not be warranted. In the alternative, the Veteran would be able to reopen his service connection claim on a direct basis by showing that his systemic lupus erythematosus was caused by or incurred in service or manifest to a compensable degree within one year after separation from service. See generally, 38 C.F.R. §§ 3.307, 3.309; Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veteran was not precluded under the Veterans' Dioxin and Radiation Exposure Compensation Standards Act from establishing service connection with proof of direct actual causation). Concerning the claim for compensation under 38 U.S.C.A. § 1151 for a bilateral shoulder disability and bilateral total hip replacement due to VA treatment, the Veteran's representative has argued, in essence, that the evidentiary record as currently constituted does not contain any documents showing that the Veteran was advised of the course of treatment for his systemic lupus erythematosus, in particular, with respect to the effects from long-term use of steroidal medication, to include Prednisone. See May 2011 informal hearing presentation (IHP). Without evidence of such counseling or execution of an informed consent document, the representative argued that there could be no basis to find that the Veteran consented to the steroidal therapeutic treatment as required under 38 C.F.R. §§ 3.361 and 17.32. The evidence of record showed that the Veteran was admitted to a private hospital for multiple symptoms, including fatigue, chills, fever, dehydration, weight loss and generalized malaise in November 1997, at which time he reported a history of treatment for similar problems at private hospitals in Fort Walton, Florida about a year earlier. The Veteran also reported a family history of lupus, including in his younger sister and a maternal aunt. Although no specific etiology for the Veteran's complaints was identified, his symptoms were stabilized and he was discharged after four days, and subsequently admitted to the VA Medical Center (VAMC) in Detroit, Michigan for the same symptoms later in November 1997. A kidney biopsy at that time was consistent with systemic lupus glomerulonephritis and the Veteran started Prednisone on November 20, 1997. The records showed that the Veteran was treated for his lupus with Prednisone off and on for several years, and apparently developed necrosis of the hips requiring total hip replacements in June 2001 and June 2002. A VA treatment note, dated in February 2003, noted a history of avascular necrosis of the hips secondary to steroid treatment. More recent medical reports in May 2008, showed a reported history of bilateral shoulder pain, but do not include any objective findings or any specific diagnosis. Upon review of the evidence of record, it appears that not all of the Veteran's VA treatment records have been obtained and associated with the claims file. Specifically, the VA hospital admission records for the Veteran's hospitalization in November 1997 are not in the claims file. Thus, the Board is unable to ascertain whether the Veteran received adequate counseling concerning his therapeutic treatment with Prednisone and whether he gave his informed consent at that time. Also, the treatment records and surgical reports for the Veteran's total hip replacement surgeries in June 2001 and June 2002 are not in the claims file. Those records are pertinent to determine the reason for the total hip replacements, and should be obtained and associated with the claims file. Additionally, the Veteran has indicated on more than one occasion that he received private medical treatment which is pertinent to the current claim. The Board observes that private treatment records from Halifax Medical Center have been obtained and associated with the claims file. The Veteran has also identified outstanding treatment records from Humana Hospital in Fort Walton Beach, Florida and the University of Alabama Medical Center in Birmingham, Alabama. On remand, therefore, the Veteran should identify any and all sources of treatment pertinent to his claims that are not already of record. In particular, the Veteran should provide, or authorize VA to obtain, pertinent private treatment records that are not already of record. The Veteran also receives medical care through VA. VA is required to make reasonable efforts to help a Veteran obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2010); Bell v. Derwinski, 2 Vet. App. 611 (1992). The AMC should attempt to obtain all VA medical records pertaining to the Veteran that are dated from September 30, 2009. Accordingly, the claim is REMANDED to the AMC for the following action: 1. Contact the Veteran and request that he identify any and all non-VA sources of treatment for his systemic lupus erythematosus, claimed as undiagnosed illness, and in support of his 38 U.S.C.A. § 1151 claim that are not already of record. In particular, the Veteran should provide, or authorize VA to obtain, any such pertinent private records, including but not limited to records from Humana Hospital in Fort Walton Beach, Florida, and the University of Alabama Medical Center in Birmingham, Alabama, which are not already of record. The Veteran should also be asked to identify the location of his June 2001 and June 2002 hip replacement surgeries. If records identified by the Veteran are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2010). In addition, send a duty-to-inform notice to the Veteran pursuant to the Veterans Claims Assistance Act. The notice letter must provide information about the type of evidence necessary to reopen the previously denied claim of service connection for systemic lupus erythematosus, claimed as undiagnosed illness. The VCAA notice should include specific notice of why the prior finally-decided claim was previously denied and what constitutes new and material evidence for the purpose of reopening this claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Specifically, the Veteran should be advised to submit any evidence which showed that he had service in the Southwest Asia Theater of Operations during the Persian Gulf War. In the alternative, the Veteran should be advised to submit any evidence showing that his systemic lupus erythematosus was caused by or incurred in service or manifest to a compensable degree within one year after separation from service. 2. The AMC should take appropriate action to obtain any and all VA clinical and treatment records for the Veteran's hospitalization at the VAMC in Detroit, Michigan in November 1997 and associate them with the claims file. Of particular interest are the admission reports, including any informed consent documents and/or counseling reports pertaining to the Veteran's VA hospitalization in November 1997 and his subsequent use of Prednisone. An attempt should also be made to obtain any and all records pertaining to the Veteran's June 2001 and June 2002 hip replacement surgeries as well as any relevant VA medical treatment records pertaining to the Veteran from September 30, 2009. If these records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2010). 3. If and only if evidence is obtained which showed substantial compliance with the provisions of 38 C.F.R. § 17.32, or a document showing that the Veteran consented to therapeutic treatment and use of Prednisone in November 1997, schedule the Veteran for an examination to determine the relationship, if any, between the Veteran's bilateral hip replacements, any identified bilateral shoulder disability, and the therapeutic treatment of his systemic lupus erythematosus with Prednisone. The examiner should note in the examination report that the claims file has been reviewed. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. In particular, the examiner is asked to indicate whether the Veteran's treatment for systemic lupus erythematosus, including use of Prednisone, in November 1997 was performed within the appropriate medical standards of care by VA. The examiner should also indicate whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran has an additional disability, including but not limited to a claimed bilateral shoulder disability, and/or bilateral hip replacement, as a result of any improper treatment rendered at the VAMC Detroit in November 1997 and thereafter following the initial diagnosis of systemic lupus erythematosus. If the examiner answers this question affirmatively, the examiner is asked to indicate whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the additional disability was the result of or caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing therapeutic treatment with Prednisone for his systemic lupus erythematosus. In reaching this conclusion, the examiner should indicate whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider. In the alternative, the examiner is asked to indicate whether the additional disability was caused by or due to an event that was not reasonably foreseeable. Please note: The event need not be unforeseeable or unimaginable, but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. The examiner must provide a complete rationale for any stated opinion. 4. Thereafter, ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters 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 Supp. 2010). _________________________________________________ D. TRASKEY Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2010).