Citation Nr: 1601188 Decision Date: 01/12/16 Archive Date: 01/21/16 DOCKET NO. 14-27 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for the residuals of a destructive desmoids tumor, to include bowel obstructions, hernias and chronic colonic inertia (hereinafter tumor residuals); also claimed as a stomach condition. 2. Entitlement to a higher level of special monthly compensation (SMC) based on aid and attendance, currently at 38 U.S.C.A. § 1114 (l) (West 2014). 3. Entitlement to an effective date for SMC based on aid and attendance earlier than October 27, 2011. ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active duty from August 1978 to June 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2014 and November 2013 rating decisions issued by the Department of Veterans Affairs Regional Office (RO) in Winston-Salem, North Carolina. In a November 2013 decision, the RO denied a claim of service connection for the tumor residuals and granted the SMC for aid and attendance; the Veteran filed a notice of disagreement (NOD) with the effective date assigned for the SMC aid and attendance as well as the rate of SMC the same month. In June 2014, the Veteran submitted more evidence regarding his claim of service connection for tumor residuals and this claim was again denied in July 2014. A notice of disagreement was filed for the tumor residuals in August 2014. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A March 1981 congressional letter references the fact that the Veteran is in receipt of Social Security Administration (SSA) disability benefits. VA is required to request these federal records. 38 C.F.R. § 3.159(c)(1) (2015). Regarding the claim of service connection for tumor residuals, a May 20, 2008 Womack Army Medical Center operative report referenced the fact that the original surgery that led to the current postoperative residuals took place at Georgetown University Hospital in 2007. Since that original surgery which removed pseudotumor on the abdominal wall, the Veteran has had multiple surgeries and complications (see, for example April 2013 VA general surgery record). The Veteran's theory of the claim is that the tumor and subsequent residuals was caused by psychiatric medications he was given over the years for his service-connected psychiatric disability (schizophrenia and posttraumatic stress disorder or PTSD) (see October 2011 claim). Alternatively, the Veteran appears to be claiming that his service-connected psychiatric disability aggravates his tumor residuals. The 2007 Georgetown Hospital records are not in the file, but could be of use in this case and the Board requests the AOJ attempt to obtain them. See 38 C.F.R. § 3.159(c)(1). The July 2014 VA opinion stated the Veteran had been prescribed Zisprasidone since 2011 for his service-connected mental health problems. The medical literature did not support the current conditions as an adverse drug effect of Zisprasidone. The examiner stated medical evidence did not show any prescribed medication for treatment of mental health condition in 2007 (which was the time of the initial diagnosis of desmoid tumor with the complications occurring following the tumor treatment) which would cause these his current tumor-related complications (such as the hernias, nonhealing wounds, bowel obstructions, chronic colonic inertia, etc.). The July 2014 VA medical opinion in the file noted the mental health prescription since 2011, but not any prior to that year, to include historical prescriptions for Haldol, Cogentin (see, for example, November 1987 VA examination report), stelzaine (see July 1980s VA examination) and Prolixin (see June 1979 VA discharge summary). Also, the April 2013 VA general surgery record noted the Veteran was taking Zoloft. On remand, the opinion writer needs to address: whether medications taken prior to 2007 would cause the initial tumor that caused other complications and whether any psychiatric medications taken since 2007 would aggravate the tumor residuals. See 38 C.F.R. § 3.159(c)(4). The Board finds the issues of entitlement to a higher level and an earlier effective date of SMC based on aid and attendance are inextricably intertwined with the service connection issue. See 38 U.S.C.A. § 1114 (West 2014); 38 C.F.R. § 3.350 (2015); August 2010 aid and attendance examination. As these issues are inextricably intertwined, initial adjudication of the service connection issue is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together), overruled on other grounds by Tyrues v. Shinseki, 23 Vet. App. 166 (2009) (en banc), aff'd, 631 F.3d 1380, 1383 (Fed. Cir. 2011), vacated and remanded for reconsideration, 132 S. Ct. 75 (2011), modified, 26 Vet. App. 31 (2012). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Request all SSA records, including decisions and records considered in those decisions. A negative response is requested and should be placed in the file and the Veteran should be informed if VA is unable to obtain records. 38 C.F.R. § 3.159(e)(1). 2. With any necessary assistance from the Veteran, request records from Georgetown University Hospital. Ensure compliance with § 3.159(e). 3. After the above development is completed, return the file to the July 2014 VA opinion writer, or send the file to a new examiner qualified to posit an opinion in this case. The opinion writer should reflect that the file was reviewed. The opinion should note tumor diagnosis and its residuals as well as, after a full review of the file, all past prescribed medication for the Veteran's service-connected psychiatric disabilities. Then the examiner should state: * whether it is at least as likely as not (a 50 percent or greater probability) that the destructive desmoids tumor (to include its residuals) is related to service; * whether it is at least as likely as not that the destructive desmoids tumor (to include its residuals) was caused by the current service-connected psychiatric disabilities, to include the medications taken for the service-connected disabilities. * whether it is at least as likely as not that the destructive desmoids tumor (to include its residuals) has been aggravated by the current service-connected psychiatric disabilities, to include the medications taken for the service-connected disabilities. o If aggravated, the examiner should clarify whether there is medical evidence created prior to aggravation or at any time between the aggravation and the current level of disability that shows a baseline of the disability prior to aggravation. The examiner should reference the medications noted above. A clear and complete rationale shall be provided for each opinion regarding diagnosis and nexus. 4. Adjudicate the service connection claim. 5. After adjudicating the service connection claim, undertake any appropriate development regarding the claim for a higher level of SMC based on aid and attendance, currently at 38 U.S.C.A. § 1114 (l), as well as entitlement to an effective date for SMC based on aid and attendance earlier than October 27, 2011. 6. Readjudicate the claims. If the determination remains adverse to the Veteran, he should be furnished with a supplemental statement of the case and given an opportunity to respond. The appellant 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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) (2015).