Citation Nr: 1333743 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 09-26 537 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington THE ISSUE Entitlement to service connection for avascular necrosis of the bilateral hips, claimed as secondary to service-connected dermatitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to December 1971. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2008 rating decision in which the RO denied entitlement to service connection for avascular necrosis. In March 2009, the Veteran filed a notice of disagreement (NOD) as to the denial of his service connection claim. A statement of the case (SOC) was issued in May 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2009. In his substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO. A February 2012 letter informed him that his hearing was scheduled for March 2012. However, in correspondence received in March 2012, the Veteran cancelled his hearing request. For the reasons expressed below, the matter on appeal is being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately the Board finds that further RO action on the claims on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. The Veteran is seeking to establish service connection for avascular necrosis, which he has asserted is due to the medication he was prescribed to treat service-connected dermatitis. Parenthetically, the Board notes that service connection for dermatitis affecting the back, buttocks, and thighs was established in May 1985. The evidence of record shows the Veteran was diagnosed with avascular necrosis in March 2006, with evidence of such appearing in the record as early as December 2000. See December 2000 bilateral hip X-ray; March 2006 VA outpatient treatment record; June 2011 VA/QTC examination. The Veteran has asserted he developed avascular necrosis as a result of the corticosteroids he used to treat his service-connected dermatitis, to specifically include Aristocort. In support of his claim, he has submitted various articles obtained from his Internet research which state that studies show (1) that patients taking corticosteroids are particularly at risk for developing avascular necrosis, (2) that long-term systemic (oral or intravenous) use of corticosteroids is associated with 35 percent of all cases of no traumatic avascular necrosis, (3) that corticosteroid-related avascular necrosis is more severe and more likely to affect both hips than avascular necrosis resulting from other causes and (4) that even short term exposure to corticosteroids can lead to avascular necrosis. Evidence submitted by the Veteran also indicate that topical steroids have various levels of strength and certain corticosteroids, including Aristocort, may result in adverse reactions, including aseptic necrosis of the femoral and humeral head. The Veteran was afforded a VA examination in June 2011, at which time the examiner continued his diagnosis of avascular necrosis affecting the bilateral hips. The VA examiner noted the Veteran's medical history as it pertains to his bilateral hip disability, including hip replacement surgery in March 2006. The VA examiner also noted the Veteran's use of corticosteroids for dermatitis for 40 years. As to the etiology of the Veteran's avascular necrosis, the VA examiner stated that it is medically impossible to relate avascular necrosis and dermatitis, noting that topical steroids are not a likely cause of avascular necrosis of the bilateral hips. In this regard, the VA examiner also noted that there is no evidence of systemic steroid treatment or steroid abuse, including in the discharge summary following hip replacement surgery in March 2006. However, in rendering the opinion that steroids are not a likely cause of vascular necrosis of the hips, the examiner did not explicitly address the evidence submitted by the Veteran-which appears to support a contrary conclusion-nor did the examiner provide a complete rationale for the opinion, to include citation to appropriate medical authority. This is significant, given the Internet articles which state that the use of the topical steroid, Aristocort, may result in adverse reactions, including aseptic necrosis of the femoral and humeral heads, and the fact that the evidence shows the Veteran was using Clobetasol to treat his service-connected dermatitis, which is shown to be one of the strongest topical steroids, notably stronger than Aristocort, as indicated by the Internet articles submitted by the Veteran. The Board points out that factors in assessing the probative value of a medical opinion whether the examiner was informed of sufficient facts upon which to base an opinion and whether the report contains data, conclusions, and a complete rationale in support thereof. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). It must be clear from either the examiner's statements or the Board's decision that the examiner has considered "all procurable and assembled data" by obtaining all tests and records that might reasonably illuminate the medical analysis. See Daves v. Nicholson, 21 Vet. App. 46 (2007). When the record leaves this issue in doubt, it is the Board's duty to remand for further development. Accordingly, the Veteran's claims file should be forwarded to the July 2011 examiner for an addendum opinion based upon full consideration of all pertinent evidence, including the evidence submittef by the Veteran in support of this claim. The RO should only arrange for the Veteran to undergo examination if the July 2011 examiner is not available, or another examination of the Veteran is deemed warranted. The Veteran is hereby advised that, failure to report to any examination scheduled in connection with this claim, without good cause, may well result in denial of the claim. See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination, the RO should obtain and associate with the claims file a copy of the notice of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to obtaining further medical opinion in this case, to ensure that all due process requirements are met, and the record is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent medical records. As for VA records, the claims file, inclusive of the paper file and electronic (Virtual VA) folder, contains VA outpatient treatment records from the VA Medical Center (VAMC) in Spokane, Washington, dated through February 2, 2011. However, more recent records from this facility may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO must obtain and associate with the Veteran's file all outstanding, records of pertinent VA evaluation and/or treatment from the Spokane VAMC dated from February 2011 to the present, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the appellant another opportunity to present information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2011) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should obtain any additional evidence for which the appellant provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. The RO's adjudication of the claim should include consideration of all additional evidence added to the record since the RO's last adjudication of the claim in the October 2011 supplemental statement of the case (SSOC). Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records from the Spokane Washington VAMC and associate them with the claims file. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. 2. Send to the Veteran and his representative a letter requesting that the Vetetan he provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, forward the Veteran's entire claims file, to include a complete copy of this REMAND, and copies of any relevant Virtual VA records, to the July 2011 VA examiner for an addendum opinion. The examiner should again review the claims file, to include results of Internet research submitted by the Veteran, as well as the prior examination report and opinion. The examiner should provide an opinion, consistent with sound medical principles, and based on full consideration of the Veteran's medical history, assertions, and supporting evidence, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's avascular necrosis (a) had its onset in or is otherwise medically related to service; or, if not, (b) was caused or is aggravated (permanently worsened beyond natural progression) by service-connected dermatitis-in particular, the medications utilized to treat the disability. An opinion must be provided with respect to (a), (b), and (c). If aggravation of avascular necrosis is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. In providing the requested opinions, the VA examiner should specifically consider and discuss whether the treatment the Veteran has received for his service-connected dermatitis included the use of corticosteroids. If so, the examiner should describe the circumstances of such use, including the length of use, and discuss whether the use of such medication is the likely cause of the Veteran's current avascular necrosis. In this context, the VA examiner should explicitly consider and discuss the Interest articles which state that the use of the topical steroid, Aristocort, may result in adverse reactions, including aseptic necrosis of the femoral and humeral heads. The examiner should consider and discuss the Veteran's use of topical steroids stronger than Aristocort to treat service-connected dermatitis. The examiner should provide complete rationale for the conclusions reached (to include citation to supporting medical authority, as appropriate) in a printed (typewritten) report. 5. If the July 2011 examiner is not available, or another examination of the Veteran is deemed warranted, arrange for the Veteran to undergo VA examination, by an appropriate physician, to obtain opinions responsive to the questions posed above. Under such circumstances, the entire claims file, to include a complete copy of this REMAND, and copies of any relevant Virtual VA records, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All necessary tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his/her report), and all clinical findings should be reported in detail. The physician should set forth all examination findings, along with complete rationale for the conclusions reached (to include citation to supporting medical authority, as appropriate), in a printed (typewritten) report. 6. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appea in light of all pertinent evidence and legal authority. 9. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC (SSOC) that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. 2012). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).