Citation Nr: 9921460 Decision Date: 07/30/99 Archive Date: 08/03/99 DOCKET NO. 98-13 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a disability manifested by arthralgias, alopecia, recurrent cystitis, fibromyalgia, fatigue, and loss of concentration, claimed as atypical connective tissue disease or atypical rheumatic syndrome secondary to elective cosmetic surgery for mammary hypoplasia. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Rolfe, Associate Counsel REMAND The veteran served on active duty from June 1980 to June 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. Although where a claim is not well grounded VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim, VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his or her application if on notice that relevant evidence exists or may be obtainable. This obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim (see Robinette v. Brown, 8 Vet. App. 69 (1995)), which depends further upon the Department having notice that relevant evidence may exist or could be obtained (see Franzen v. Brown, 9 Vet. App. 235 (1996)). See also Epps v. Brown, 9 Vet. App. 341 (1996) (sec. 5103(a) duty attaches only where there is an incomplete application which references other known and existing evidence that pertains to the claim under consideration) and Wood v. Derwinski, 1 Vet. App. 190 (1991) (VA's "duty" is just what it states, a duty to assist, not a duty to prove a claim). When information sufficient to identify and locate necessary evidence is of record, the Department shall assist a claimant by requesting, directly from the source, existing evidence which is either in the custody of military authorities or maintained by another Federal agency. 38 C.F.R. § 3.159(c) (1998). In this case, there is an indication that further records may exist that may have relevance to the veteran's claim. The veteran should be advised what those records are and be given the opportunity to present them. Furthermore, although the RO has tried to obtain the veteran's service medical records and the report of her hospitalization for breast augmentation surgery at Portsmouth Naval Hospital, another effort to obtain these records is warranted, in view of the only partially responsive answer from Portsmouth Naval Hospital. There are of record two letters from N. James Doll, M.D., reflecting evaluation of the veteran in 1993 and 1994, and citing clinical and laboratory data reviewed by him. Dr. Doll's actual treatment notes, examination reports, and laboratory or other diagnostic test results on the veteran are not of record. The veteran should be given the opportunity to obtain Dr. Doll's complete treatment records of her, to include all laboratory and diagnostic work done, and all progress notes or examination results. There is a recently submitted treatment note from Thomas V. Allen, M.D., indicating examination and recommended diagnostic follow-up. The note is copied to Thomas J. Worgul, M.D. The veteran should be given the opportunity to submit the actual treatment records of these doctors, and any laboratory or diagnostic studies done, if she wishes this information considered in connection with her claim. The veteran is to be advised that her complete medical treatment records, to include all laboratory and diagnostic data, from 1984 to the present, may be relevant to her claim and that she must submit them in order to assure a fully informed consideration of her claim. In particular, Dr. Doll noted that the appellant had suffered a traumatic injury to her chest approximately one year after her original breast augmentation surgery, following which she had noticeable changes in her breasts. Any treatment records associated with that injury and subsequent follow-up should be provided. Ask the veteran for the dates and locations of any VA treatment she may have had since 1984. Obtain and associate with the file her VA treatment records. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In requesting the veteran's hospitalization records from Portsmouth Naval Hospital, the RO requested information to assist in locating records that might be retired. The response was that there was no record of inpatient or outpatient treatment. The Naval Hospital asked for certain specific information, some of which had not been provided by the RO, such as the veteran's full name and her date of birth. In an effort to assure that potentially relevant information is of record, the RO should contact the Naval Medical Center in Portsmouth, Virginia, once again. In order to increase the chance of success, the RO should ask the veteran to provide the exact date(s) of her surgery at the naval hospital. If the hospital is unable to provide the information requested, ask it to indicate other potential sources, and follow up with any appropriate requests. Ask the veteran to submit a copy of the naval hospital records if she has them. The RO requested service medical records and received dental records from service and reserve medical records post-dating service. The dental records indicate the veteran underwent an examination for release from active duty in April 1984. A statement of administrative remarks dated in May 1984 indicates that the veteran reported her original health record to be lost. On the basis of that record, it appears that there may be no surviving medical records. However, in an effort to assure that every effort is made, request the veteran's complete medical and clinical records from the National Personnel Records Center, to include the entrance and separation examinations, and any medical records for surgery in November 1983 (or such more specific date as the veteran may be able to provide) at Portsmouth Naval Hospital. Thereafter, determine if the evidence submitted by the appellant and obtained from government/military sources presents a plausible claim. If it does, undertake such development as may be warranted, to include scheduling the veteran for an examination by a rheumatologist. Ask the doctor to review the claims file thoroughly in connection with the examination and to determine what diagnosis or diagnoses are appropriate to the veteran's symptomatology and whether it is at least as likely as not that any disease or disability she now has is related to silicone breast implants removed in 1994. Accordingly, this case is REMANDED for the following: 1. Contact the veteran and ask her whether she has received any VA treatment since 1984, and, if so, to indicate the facilities and dates of such treatment. Obtain and associate VA treatment records with the file, to include reports of all laboratory and diagnostic studies. Ask the veteran to provide the exact date of her surgery at Portsmouth Naval Hospital to assist in trying to obtain a copy of her records. Ask her to submit copies of any service medical records she may have relating to that surgery or subsequent treatment or examinations. Thereafter, contact the Naval Hospital, providing all information requested in the August 1996 response, to include the veteran's FULL NAME (not just first, last and middle initial), social security number, dates of treatment, and date of birth. If the hospital is unable to locate the records, follow up with any alternative sources indicated, to include National Personnel Records Center (NPRC). 2. Make another request for the veteran's complete medical and clinical records from her service from 1980 to 1984, to include her hospitalization records and her entrance and separation examinations. Associate any response received with the claims file. 3. Ask the veteran to obtain and submit the complete treatment records of Dr. James Doll, Dr. Thomas Allen, and Dr. Thomas Worgul. The records are to include all examination reports, progress notes, laboratory and diagnostic studies. Ask her to submit her complete medical records since 1984, to include all laboratory and diagnostic studies, and to include any treatment, evaluation, and follow-up from the chest injury reported by Dr. Doll to have occurred one year after the original breast augmentation surgery. Let the veteran know that these records are important in connection with her claim, and that it is her ultimate responsibility to submit evidence to support her claim. See 38 C.F.R. § 3.159(c) (1998). 4. Thereafter, review the claims file and determine whether the claim for disability claimed as secondary to elective cosmetic surgery is plausible. If it is, undertake such development as may be indicated, to include scheduling the appellant for an examination by a rheumatologist, who is to review the claims folder in connection with the examination and to determine whether there is a diagnosis that can be associated with the veteran's complaints. If such a diagnosis can be attributed to the veteran's symptoms, the examiner is asked to express an opinion as to the date of onset of said disease and its likely etiology. In particular, is it at least as likely as not that any current disease is attributable to in-service breast augmentation surgery, or to chest injury reportedly sustained at some later date. 5. After completion of the above, readjudicate the veteran's claim. If the benefit sought on appeal remains denied, provide the veteran and her representative a supplemental statement of the case. Allow an appropriate period for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no action until she is so informed; however, she is free to submit additional evidence or argument to the RO while this case is in remand status. Booth v. Brown, 8 Vet. App. 109 (1995). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991& Supp. 1999), 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) (1998).