Citation Nr: 1418445 Decision Date: 04/25/14 Archive Date: 05/02/14 DOCKET NO. 12-02 267 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for hematoma. 2. Entitlement to service connection for memory loss. 3. Entitlement to service connection for complete paralysis of the right side. 4. Entitlement to special monthly compensation based on aid and attendance. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran, his spouse, and K.B. ATTORNEY FOR THE BOARD J.M. Rutkin, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The case is currently under the jurisdiction of the RO in Chicago, Illinois. The Veteran, his spouse, and a friend testified at a hearing before the undersigned in July 2013. A transcript is of record. At the hearing, the undersigned took testimony respecting a service connection claim for a colon condition, including residuals of a colectomy, which was denied in the October 2009 rating decision. A review of the record shows that the Veteran did not appeal the denial of this claim, and therefore it is not before the Board. See 38 C.F.R. §§ 20.200, 20.201, 20.302 (2013) (setting forth requirements and time limits for initiating and perfecting an appeal). Because the Veteran submitted a July 2013 letter from his private treating physician that in part discusses the Veteran's colon condition, and because he provided testimony in support of this claim at the hearing, the record raises a petition to reopen this claim based on new and material evidence. The agency of original jurisdiction (AOJ) has not yet addressed this issue. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. See 38 C.F.R. § 19.9(b) (2013). The Veteran submitted additional evidence at the Board hearing, and, in a July 2013 written statement, waived his right to initial review of this evidence by the AOJ. See 38 C.F.R. § 20.1304(c) (2013) (providing that any pertinent evidence accepted directly at the Board must be referred to the AOJ for initial review unless this procedural right is waived by the appellant). Nevertheless, as these claims must be remanded for additional development, the AOJ will have an opportunity to consider this additional evidence as well. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND While the Board sincerely regrets the delay, these claims must be remanded for further development to ensure an informed decision and to afford them every due consideration. The Veteran contends that an intracerebral hematoma and the treatment for it, which led to a hemorrhagic stroke in 2006 and consequent right-side paralysis and aphasia, is related to an episode of Henoch-Schonlein Purpura (HSP) during active service, for which he was hospitalized for about two months. A January 2013 VA opinion found against a relationship between the Veteran's HSP and the later development of the hematoma and resulting complications. The examiner explained that HSP is a small vessel vasculitis related to a transient autoimmune phenomenon, and that the Veteran's episode had resolved without further problems. However, in a July 2013 letter from B. O'Malley, MD, the Veteran's private treating physician for many years, the physician stated that the complications of the Veteran's hematoma, and in particular from the radiation treatment for it, were rare and indicated an underlying abnormality related to the HSP episode. Specifically, the physician opined that the episode of HSP in service had rendered the Veteran's blood vessels more fragile than normal for a person of the Veteran's age and health, causing them to react in an abnormal fashion with severe complications. The physician did not explain the medical principle behind this conclusion, account for the long period of time that had passed since the Veteran's HSP episode in service, or otherwise provide further discussion. Given the period of over three decades that elapsed between the Veteran's HSP episode in service and the development of the hematoma and complications, without evidence of any health conditions in the interim related to HSP, and in light of the January 2013 VA opinion, further opinion is warranted as to the likelihood that the Veteran had weakening of the vessels due to HSP that factored into the hematoma and/or complications resulting from treatment for it. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (observing that VA has discretion to arrange for a medical examination of the Veteran when deemed necessary to make an informed decision on the claim); accord Shoffner v. Principi, 16 Vet. App. 208, 213 (2002). The AOJ should also attempt to obtain any outstanding in-patient clinical records of the Veteran's hospitalization for HSP during active service, and request him to identify any additional records pertinent to these claims. The Board will defer consideration of the aid and attendance claim at this time, as it is dependent on the outcome of the service connection claims. See Harris v. Derwinski, 1 Vet. App 180, 183 (1991) (two issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on the resolution of the second issue). Accordingly, the case is REMANDED for the following actions: 1. Make appropriate efforts to obtain any in-patient clinical records from the Martin Army Hospital at Fort Benning, Georgia, for the period from November 1968 to January 1969, when the Veteran was hospitalized for HSP. All efforts to obtain these records must be documented and associated with the claims file, to include any negative responses received. The Veteran must also be notified of any failure to obtain such records, the steps taken to obtain them, what further action, if any, will be taken, and that it is ultimately his responsibility to submit the records in question. 2. Request the Veteran to identify any additional treatment records relevant to his claims, to include records of his radiation treatment from the Mayo Clinic in Rochester, Minnesota, and any records pertaining to the stroke in April 2006, and to provide the necessary authorization for VA to obtain these records on his behalf, or to submit them himself. Then, take appropriate steps to secure copies of any outstanding private treatment records for which the Veteran has furnished the necessary authorization. All efforts to obtain these records must be documented and associated with the claims file, to include any negative responses received. The Veteran must also be notified of any failure to obtain such records, the steps taken to obtain them, what further action, if any, will be taken, and that it is ultimately his responsibility to submit the records in question. 3. Return the case to the physician who rendered the January 2013 opinion for a supplemental opinion. The entire claims file and a copy of this REMAND must be made available to the physician. If that physician is not reasonably available, a different medical doctor with an appropriate background may render the opinion. The physician should review the July 2013 letter from Dr. O'Malley and any additional pertinent evidence, and discuss the likelihood that the Veteran's episode of Henoch-Schonlein Purpura (HSP) during service compromised or weakened his blood vessels, leading to complications associated with the intracranial hematoma, including a stroke and resulting paralysis and aphasia, decades later. The examiner must also address whether the HSP episode during service, and the later complications associated with the hematoma, including the hemorrhagic stroke, otherwise might stem from the same underlying condition or constitute manifestations of the same chronic disease process, such as idiopathic thrombocytopenic purpura, even if the episode of HSP in service did not itself result in chronic residuals. Cf. 38 C.F.R. § 3.309(a) (defining idiopathic purpura, hemorrhagic, as a chronic disease). A complete explanation in support of the opinions must be provided. 4. After the above development is completed, and any other development that may be warranted, readjudicate the claims on the merits. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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. 2013). _________________________________________________ S. L. Kennedy 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).