Citation Nr: 0006811 Decision Date: 03/14/00 Archive Date: 03/17/00 DOCKET NO. 96-49 806 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a left hip disability, to include manifestations of an undiagnosed illness resulting from service in the Persian Gulf. 2. Entitlement to service connection for a right hip disability, to include manifestations of an undiagnosed illness resulting from service in the Persian Gulf. 3. Entitlement to service connection for a right shoulder disability, to include manifestations of an undiagnosed illness resulting from service in the Persian Gulf. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Thomas D. Jones, Associate Counsel INTRODUCTION The veteran served on active duty from July 1987 to June 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1995 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran's claim for service connection for disabilities of the right and left hips, and the right shoulder. The veteran filed a September 1996 notice of disagreement, initiating this appeal. His appeal was perfected by a November 1996 VA Form 9 substantive appeal. A personal hearing at the RO was afforded the veteran in August 1997. He originally requested a hearing before a member of the Board, but withdrew this request, in writing, prior to any Board hearing being held. The veteran had also perfected an appeal of the RO's October 1995 denial of service connection for a skin disability; however, service connection for a skin disability was awarded in an August 1997 rating action. As this constitutes a grant of benefits fully favorable to the veteran, this appeal is resolved and will not be considered by the Board. Henderson v. West, 11 Vet. App. 245, 246-47 (1998); Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). FINDINGS OF FACT 1. The veteran had active military service in the Southwest Asia theater of operations during the Persian Gulf War. 2. The veteran has submitted plausible claims for service connection for disabilities of the bilateral hips, and right shoulder. CONCLUSION OF LAW The veteran has submitted evidence of well grounded claims for service connection for joint pain of the bilateral hips and right shoulder, as a chronic disability resulting from an undiagnosed illness. 38 U.S.C.A. § 1117, 5107(a) (West 1991 & Supp. 1999); 38 C.F.R. § 3.317 (1999); VAOPGCPREC 4-99 (May 3, 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background A service entrance medical examination was afforded the veteran in October 1986. At that time, no current or prior disabilities of the bilateral hips or right shoulder were noted. He was approved for induction into the service. The veteran sought treatment in February 1993 for a left hip injury following a parachute jump. X-rays of the left hip were negative for fracture, dislocation, or soft tissue abnormality. Also, no evidence of a bony abnormality was seen. In November 1994, he sought treatment for right shoulder pain, aggravated by activity. No visible signs of abnormality were noted, and degenerative joint disease was suspected, but there is no evidence this was confirmed with X-rays. The veteran again sought treatment for a right shoulder disability in December 1994, reporting recurrent subluxation of the joint. He denied any dislocation of the joint, and his range of motion was intact, without grinding or clicking. No neurovascular abnormalities were seen, and he was referred to the physical therapy clinic for instruction in home strengthening exercises. A service separation examination was afforded the veteran in April 1995. He reported chronic pain of the bilateral hips and the right shoulder, among other joints. No disabilities of either hip or the right shoulder were observed upon objective evaluation, however. His military records confirm the veteran's participation in airborne training. He also served in the Persian Gulf theater of operations in the early 1990's, and was awarded the Combat Infantryman's Badge. Following his separation from service, the veteran filed a July 1995 claim for service connection for several disabilities, including those of the bilateral hips and the right shoulder. A VA general medical examination was afforded the veteran in August 1995. He reported a history of recurrent bilateral hip pain, which he attributed to his duties as a paratrooper in the service. Recurrent right shoulder pain was also reported, without a precipitating event being noted. Upon objective examination, he had full range of motion of the right hip, without significant pain. Range of motion of the right shoulder was also full, without swelling, redness, or increased warmth of the joint. X-ray evaluations of the right hip and right shoulder were both characterized as normal. He was diagnosed with painful hips and a painful right shoulder. The RO reviewed the evidence of record and issued an October 1995 rating decision. Among the issues decided, the veteran was denied service connection for disabilities of the right shoulder and the bilateral hips. He responded with a September 1996 notice of disagreement. He was sent an October 1996 statement of the case, and he then filed a November 1996 substantive appeal. He also requested a personal hearing at the RO. A personal RO hearing was afforded the veteran in August 1997. He testified on his own behalf, accompanied by his wife. He reported serving in the airborne infantry, which involved taking part in approximately 60 parachute jumps. On one such occasion, he landed among some trees, and injured both hips. He was told both hips had been "jammed." Since that time, he has experienced a recurrent aching in the bilateral hip joints. Regarding his right shoulder, he stated that it became dislocated while lifting an object during service. Since that time, he has experienced recurrent pain, dislocation, and numbness in the joint. Finally, the veteran's representative noted that the veteran had served in the Persian Gulf during the early 1990's, and suggested he may have an undiagnosed illness resulting from his presence in that region. The RO considered this testimony and continued the prior denials of the veteran's claims for service connection for disabilities of the bilateral hips and right shoulder. The veteran was provided with a supplemental statement of the case, and the appeal was forwarded to the Board. Analysis The veteran seeks service connection for disabilities of the bilateral hips and right shoulder. In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the VA has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, 13 Vet. App. 205 (1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that his claims are well grounded; that is, that the claims are plausible. In that regard, the veteran has reported joint pain of the hips and right shoulder in service, and the service medical records do confirm treatment being afforded the veteran for these complaints. His service personnel records also confirm service in the Southwest Asia theater of operations during the Persian Gulf War. Next, the veteran has submitted the aforementioned August 1995 VA examination report which indicates a diagnosis of joint pain of the bilateral hips and right shoulder which the examiner was unable to attribute to a known clinical diagnosis. Finally, the veteran has testified regarding a continuity of joint pain symptomatology since his separation from service. 38 C.F.R. § 3.303(b) (1999); Savage v. Gober, 10 Vet. App. 489 (1997). Thus, the veteran has submitted sufficient evidence of well grounded claims for service connection for disabilities of the bilateral hips and right shoulder, and additional adjudication may be afforded him. Winters v. West, 12 Vet. App. 203, 206-7 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). ORDER The veteran's claims for service connection for joint pain of the bilateral hips and right shoulder, as a chronic disability resulting from an undiagnosed illness, are well grounded. The appeal is granted to this extent subject to the following remand directions of the Board. REMAND The law requires full compliance with all orders in this remand. Stegall v. West, 11 Vet. App. 268 (1998). Although the instructions in this remand should be carried out in a logical chronological sequence, no instruction in this remand may be given a lower order of priority in terms of the necessity of carrying out the instruction completely. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran seeks service connection for disabilities of the bilateral hips and right shoulder. He has alleged that these disabilities are potential manifestations of an undiagnosed illness resulting from his active military service in the Southwest Asia theater of operations during the Persian Gulf War. Once a claim is found to be well grounded, the VA has a statutory duty to assist the claimant in developing the facts pertinent to his/her claim. 38 U.S.C.A. § 5107(a) (West 1991). The record indicates that the veteran has consistently reported joint pain of the bilateral hips and right shoulder, and has been diagnosed as having painful hips and shoulders, with no underlying pathology cited. It must be determined whether or not the veteran has objective evidence of pain of these joints, and if so, whether it is at least as likely as not that these symptoms are the result of a known clinical diagnosis. A new orthopedic examination for VA purposes (as detailed below) is necessary to properly adjudicate the veteran's claim and fulfill the mandatory guidelines of M21- 1, Part III, Change 74 (April 30, 1999). Also, review of the October 1996 statement of the case and October 1999 supplemental statement of the case demonstrates that the veteran has not been provided with the applicable laws and regulations regarding undiagnosed illness claims from Persian Gulf War veterans. 38 U.S.C.A. § 1118 (West 1991 & Supp. 1999); 38 C.F.R. § 3.317 (1999). The law requires the veteran be afforded a statement of the case containing a summary, with citations, of the applicable laws and regulations governing the veteran's claim(s). 38 U.S.C.A. § 7105(d)(1) (West 1991); 38 C.F.R. §§ 19.29, 19.31 (1999). As the veteran has not been provided with this information, as required by law, adjudication of his appeal at this time is potentially prejudicial to him and cannot be accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). Therefore, a remand is required for proper procedural development in this appeal. In view of the foregoing, these claims are REMANDED to the RO for the following development: 1. The RO and any physician to whom this case is assigned for an examination and/or a statement of medical opinion must read the entire remand, to include the explanatory paragraphs above the numbered instructions. 2. The RO must ensure that all pertinent records of treatment are associated with the claims folder. 3. The RO should issue the veteran a new development letter, in accordance with M21-1, Part III, Change 74 (April 30, 1999). Specifically, the veteran should be asked to submit any post-service medical and nonmedical indications of manifestations of joint pain of the hips and right shoulder that can be independently observed or verified. The nonmedical evidence may include, but is not limited to, proof of time lost from work and evidence affirming changes in the veteran's appearance, physical abilities, and mental or emotional attitude. A copy of this letter, which should be forwarded to the veteran's last known address, should be associated with the claims file. 4. Following completion of the above development, the veteran should be afforded a VA medical examination with regard to his claims concerning joint pain of the bilateral hips and right shoulder as chronic disabilities resulting from an undiagnosed illness. The claims folder and a copy of this REMAND must be made available to and be reviewed by the examiner prior to the examination. (a) The examiner should note and detail the veteran's reported symptoms relating to his hips and right shoulder. (b) The examiner should determine if there are any objective medical indications that the veteran is suffering from the reported symptoms. (c) If there are objective indications that the veteran is suffering symptoms of joint pain of the hips and right shoulder, the examiner should note whether it is at least as likely as not that the manifestations are attributable to a known diagnostic disability or disabilities. If the manifestations cannot be attributed to a clinically diagnosed illness, the examiner should be asked to determine if there is affirmative evidence that the undiagnosed illness was not incurred during active service during the Persian Gulf War, or that the undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from service during the Gulf War and the onset of his current complaints, or that the illness was the result of the veteran's abuse of alcohol or drugs. (d) All opinions expressed should be supported by reference to pertinent medical evidence 5. Upon receipt, the RO should review the examination report to ensure that it is adequate for rating purposes. If the examination is inadequate for any reason, the RO should return the examination report to the examining physician and request that all questions be answered. 6. Upon completion of the development requested by the Board and any other development deemed appropriate by the RO, the RO should again consider the veteran's claims. If any action taken remains adverse to the veteran, he and his representative should be furnished a supplemental statement of the case concerning all evidence added to the record since the October 1999 supplemental statement of the case, as well as all pertinent laws and regulations regarding undiagnosed illnesses in Persian Gulf War veterans. The veteran and his representative should then be given an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The appellant need take no action until otherwise notified. The purpose of this remand is to ensure due process and obtain additional medical information. No inference should be drawn regarding the final disposition of the veteran's claims as a result of this action. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court 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. G. H. SHUFELT Member, Board of Veterans' Appeals