Citation Nr: 1337193 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 09-49 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for pyelonephritis. 2. Entitlement to service connection for an autoimmune disorder, including rheumatoid arthritis and lupus, to include as due to an undiagnosed illness. 3. Entitlement to service connection for a disorder manifested by fatigue, muscle and joint pain, neurological symptoms, and psychological symptoms, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and her family ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran had active military service from June 1986 to June 1989 and from December 1990 to June 1991, including service in the Southwest Asia Theater of operations from January 1991 to May 1991. These matters are on appeal from a December 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction over the appeal was transferred to the Atlanta, Georgia RO during the pendency of the appeal. In August 2013, the Veteran and member of her family testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. During the August 2013 hearing the Veteran and her representative indicated that the Veteran did not have current diagnoses of rheumatoid arthritis or lupus. They argued instead that the Veteran's multiple health problems, which carried traits of rheumatoid arthritis and lupus, were a part of an autoimmune disorder. They maintained that the cause of the autoimmune disorder was unknown and should thereby be considered within the claim for a disorder due to an undiagnosed illness. However, while the record does not reflect any diagnosis of lupus, the Veteran does appear to have been diagnosed as rheumatoid arthritis. As such, the issues on appeal have been characterized to best describe/address the Veteran's contentions. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND A remand is unfortunately required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that she is afforded every possible consideration. The Veteran contends that she has pyelonephritis that was incurred in or aggravated by service. She also maintains that she has an autoimmune disorder, to include rheumatoid arthritis and lupus-type symptoms, that is related to vaccinations she received during active military service. She further describes a disorder manifested by fatigue, muscle and joint pain, neurological symptoms, and psychological symptoms, that she argues are manifestation of an undiagnosed illness. She recalls in-service exposure to environmental toxins in Southwest Asia that include oil well fires and fumes. In a June 2013 letter, the Veteran's treating physician (J.M. Brown, M.D.) opined that her autoimmune disorder is as likely as not related to vaccinations she received during her service. No rationale was provided. Under the circumstances, the Board finds that the duty to assist set forth at 38 C.F.R. § 3.159 requires that the Veteran be scheduled for a VA examination in response to her claims, as it is unclear whether the Veteran has any current pyelonephritis; autoimmune disorder; or disorder manifested by fatigue, muscle and joint pain, neurological symptoms, and psychological symptoms, to include as due to an undiagnosed illness, that is related to the Veteran's service. It is simply too unclear as what, if anything, is the cause of the Veteran's multiple health problems and whether there is a relationship between these problems and her active service. With regard to private treatment records, the Veteran testified that she has treated with Dr. J. Michael Brown since 2002. However, the only treatment records associated with the claims file are dated from August 2010 to January 2013. An August 2010 VA treatment records indicates private treatment at a pain clinic in Dalton, Georgia. However, it does not appear that those records have been obtained. Accordingly, all pertinent outstanding private treatment records should be requested an obtained. With regard to VA treatment records, a review of the paper claims file and electronic record shows that the most recent most recent VA treatment record is dated in August 2013. Consequently, as records dated since August 2013 might contain information relevant to the Veteran's claims on appeal, on remand, they must be secured and associated with the record. 38 C.F.R. § 3.159(c)(2), (c)(3) (2013); Bell v. Derwinski, 2 Vet. App. 611 (1992) (because VA is deemed to have constructive knowledge of all VA records and such records are considered evidence of record at the time a decision is made). (CONTINUED NEXT PAGE) Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Obtain the Veteran's VA outpatient treatment records for the period since August 2013. Any outstanding treatment records obtained must be physically associated with the paper claims file or with the electronic file. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims files, and the Veteran should be informed in writing. 2. Contact the Veteran and provide her with a VA Form 21-4142, Authorization and Consent to Release Information to VA, in order to obtain her private treatment records from Dr. J.M. Brown dated prior to August 2010 and since January 2013 and from the pain clinic in Dalton, Georgia. Dr. Brown should also be invited to submit a supplemental/addendum opinion to his June 2013 statement that the Veteran's autoimmune disorder is causally related to the vaccinations she received in service. Specifically, rationale to support the opinion along with citations to supporting medical treatise would be extremely helpful. Advise the Veteran that she may submit her private treatment records if she so chooses. If a negative response is received from the Veteran, or any private treatment provider, the claims file should be properly documented in this regard. All actions to obtain the aforementioned requested records should be documented fully in the claims files. 3. Following the development set forth above, the Veteran should be scheduled for a VA examination(s) to determine the nature and etiology of any current pyelonephritis; autoimmune disorder; and a disorder manifested by fatigue, muscle and joint pain, neurological symptoms, and psychological symptoms. All indicated studies should be performed, and the claims folder shall be made available to the examiner for review prior to the examination(s). The Veteran's lay history of symptomatology should also be recorded and considered. Based on the examination of the Veteran and a thorough review of the record, the examiners should provide the following information: a. Diagnose any current kidney disorder, to specifically include pyelonephritis. b. Is it at least as likely as not (a 50 percent probability or greater) that any current kidney disorder, including pyelonephritis, had its onset in or is etiologically-related to either period of the Veteran's active duty service? c. Diagnose any current autoimmune disorder, to specifically include rheumatoid arthritis and lupus. d. Is it at least as likely as not (a 50 percent probability or greater) that any current autoimmune disorder, including rheumatoid arthritis and lupus, had its onset in or is etiologically-related to either period of the Veteran's active duty service, to include in-service vaccinations and exposure to environmental hazards during Persian Gulf service (i.e., an undiagnosed illness or medically unexplained chronic multisymptom illness)? e. Diagnose any disorder(s) manifested by fatigue, muscle and joint pain, neurological symptoms, and psychological symptoms. The examiner should specifically identify the symptoms that can be attributed to a known diagnosed disability. f. Is it at least as likely as not (a 50 percent probability or greater) that any current disorder(s) manifested by fatigue, muscle and joint pain, neurological symptoms, and psychological symptoms, had its onset in or is etiologically-related to either period of the Veteran's active duty service, to include exposure to environmental hazards during Persian Gulf service (i.e., an undiagnosed illness or medically unexplained chronic multisymptom illness)? In rendering the requested opinions, the physician should specifically consider and discuss the Veteran's contentions and testimony, the lay statements of record, medical journal and informational articles, her service treatment records, and her VA and private medical records. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Thereafter, the issues on appeal should be readjudicated. If the benefit sought remains denied, furnish a supplemental statement of the case (SSOC) to the Veteran and his representative and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The SSOC should contain, among other things, a summary and discussion of the relevant evidence received since the SOC was issued in October 2009. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2012). _________________________________________________ MICHAEL A. HERMAN 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) (2013).