Citation Nr: 0005943 Decision Date: 03/06/00 Archive Date: 03/14/00 DOCKET NO. 97-27 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151 (1991) for polymyositis and residual disabilities allegedly associated with silicone breast implantations performed at a VA Medical Center (VAMC) in October 1974. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John J. Crowley, Counsel INTRODUCTION The veteran served on active duty from July 1944 to June 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating determination of the Department of Veterans Affairs (VA) Regional Office (RO). In October 1998, the veteran's representative raised the issue of entitlement to reimbursement of unreimbursed medical expenses. It is unclear if the RO has adjudicated this issue. As this claim does not appear to have been adjudicated by the RO, the veteran has not appealed this issue, and as it is not inextricably intertwined with the issue certified on appeal at this time, it is referred back to the RO for appropriate initial consideration. See Parker v. Brown, 7 Vet. App. 116 (1994). FINDING OF FACT The claim of entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151 (1991) for polymyositis and residual disabilities allegedly associated with silicone breast implantation performed at a VAMC in October 1974 may be capable of substantiation. CONCLUSION OF LAW The claim of entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151 for polymyositis and other associated disabilities alleged to have been caused by treatment at a VAMC in October 1974 is, at this time, well grounded. 38 U.S.C.A. §§ 1151 and 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). REASONS AND BASES FOR FINDING AND CONCLUSION In October 1974, the veteran underwent a bilateral subcutaneous mastectomy with bilateral breast prosthesis inserted. It appears that the breast implants were removed at a VAMC in 1992. In a February 1998 VA evaluation, the examiner noted that in 1992 the claimant apparently had these implants removed because she was concerned of television coverage and information that she had learned from the press. Apparently it was indicated that there was some rupture upon removal and maybe even rupture before removal. The RO has undergone an extensive effort to obtain pertinent medical records in support of the veteran's claim. In September 1996, the RO on two occasions requested the VAMC to provide all pertinent treatment records. In an October 1996 response, the VAMC provided the RO with one of five volumes of the original medical records for the veteran. It appears that the four volumes of VA records not received by the RO would have the records regarding the removal of the implants in 1992 as well as records regarding care of the claimant for disabilities claimed to be due to VA medical or surgical care. In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit held that, under 38 U.S.C. A. § 5107(a) (West 1991), 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, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). It light of the four volumes of medical records not received by the RO from the VAMC, the Board must find that, at this time, that the claim of entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151 (1991) for polymyositis and residual disabilities allegedly associated with silicone breast implantation performed at a VAMC in October 1974 may be capable of substantiation. Consequently, under the Court's decision in Murphy v. Derwinski, 1 Vet. App. 78, 81- 82 (1990), the Board must find that the claim of entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151 for polymyositis and other associated disabilities alleged to have been caused by treatment at a VAMC in October 1974 is, at this time, well grounded. ORDER The claim of entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151 for polymyositis and other associated disabilities alleged to have been caused by treatment at a VAMC in October 1974 is, at this time, well grounded. REMAND The Board believes it must obtain the complete records of VA medial and surgical care relating to the issue on appeal, including the four volumes of VA medical records cited by the VAMC within the October 1996 communication. It appears that these records include those pertaining to the removal of the breast implants in 1992. Accordingly, this case is REMANDED to the RO for the following developments: 1. The veteran may submit additional evidence and argument in support of his claim. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The RO should take appropriate action to obtain the complete records of VA care provided the claimant, including the four volumes of medical records cited by the VAMC within its October 1996 communication. 3. If additional records are obtained, or the claimant submits additional evidence, they should be referred to the physician who conducted the examination and review in June 1998. He should be requested to review the additional records and determine whether they would warrant any modification of his opinions and, is so, in what manner. If this physician is not available, the RO should take appropriate action to have another suitably qualified physician review the record, including any records added to the record while the claim is on remand, and provide an opinion addressing the degree of medical probability that the claimant now has a disability causally related to VA medical or surgical care in connection with the breast implantation or removal. 4. After the development requested above has been completed to the extent possible, the RO should adjudicate the veteran's claim. If the determination remains adverse, the claimant and her representative should be provided a supplemental statement of the case and accorded an opportunity to respond. Thereafter the claim should be returned to the Board in accordance with normal appellate procedures. 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. Richard B. Frank Member, Board of Veterans' Appeals