BVA9508333 DOCKET NO. 90-02 556 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 (formerly 38 U.S.C. § 351) for vitiligo as a result of Department of Veterans Affairs medical treatment beginning in 1984. REPRESENTATION Appellant represented by: Massachusetts Office of Commissioner of Veterans Service WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel REMAND The veteran had active service from April 1951 until March 1954. This matter came before the Board of Veterans' Appeals (Board) from a February 1989 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In a decision of May 30, 1990, the Board denied compensation under 38 U.S.C.A. § 1151 (formerly 38 U.S.C. § 351) for vitiligo as a result of a Department of Veterans Affairs medical treatment beginning in 1984. That decision was appealed to the United States Court of Veterans Appeals (the Court) which by order of August 16, 1993, vacated the Board decision and remanded the case for readjudication because the Board had relied on 38 C.F.R. § 3.358(c)(3), requiring VA fault-or-accident in order for the appellant to prevail, which had been invalidated by the Court in Gardner v. Derwinski, 1 Vet.App. 584 (1991). Comporting with the general thrust of the duty-to-assist and benefit-of-the-doubt doctrines, this case must be readjudicated under new regulations more favorable to the veteran. Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991) and White v. Derwinski, 1 Vet.App. 519, 521 (1991). Therefore, an explanation of the history of the development of the new regulations would be beneficial. Subsequent to the Court's decision in Gardner v. Derwinski, 1 Vet.App. 584 (1991), claims based on 38 U.S.C.A. § 1151 and 38 C.F.R. § 3.358(c)(3) were subject to a VA-wide stay, pending further appellate review of the Gardner decision. The Gardner decision was affirmed by the United States Court of Appeals for the Federal Circuit in Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993). That decision was also appealed and in December 1994, the United States Supreme Court affirmed the lower courts' decisions in Brown v. Gardner, ____ U.S. ____, 115 S.Ct. 552 (1994). Thereafter, the Secretary of the VA sought an opinion from the Attorney General of the United States as to the full extent of benefits authorized under the Supreme Court's decision. On January 20, 1995, the Secretary received an opinion from the Department of Justice's Office of Legal Counsel. On January 26, 1995, the Chairman of the Board announced the lifting of the Board's stay on the adjudication of cases involving claims for benefits under 38 U.S.C.A. § 1151 affected by the Gardner decision. On March 16, 1995, interim final VA regulations were published at 60 Federal Register 14222-23 (March 15, 1995) to conform with the Supreme Court's decision. In pertinent part, 38 U.S.C.A. § 1151 provides that when there is no willful misconduct by the veteran, VA hospitalization, medical or surgical treatment causing injury, or aggravation thereof, which results in additional disability shall be compensated as if service connected. In sum, the Supreme Court found that the statutory language of 38 U.S.C.A. § 1151 simply requires a causal connection but that not every additional disability is compensable. 38 C.F.R. § 3.358(c)(1) provides that "[i]t will be necessary to show that the additional disability is actually the result of such a disease or injury or an aggravation of an existing disease or injury and not merely coincidental therewith." Further, 38 C.F.R. § 3.358(b)(2) provides that "[c]ompensation will not be payable...for the continuance or natural progress of disease or injuries." 38 C.F.R. § 3.358(c)(3) now provides that "[c]ompensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran, or, in appropriate cases, the veteran's representative. 'Necessary consequences' are those which are certain to result from, or were intended to result from, the examination or medical or surgical treatment administered." The opinion of the Attorney General and the new 38 C.F.R. § 3.358(c)(3) preclude compensation where disability (1) is not causally related to VA hospitalization or medical or surgical treatment, or (2) is merely coincidental with the injury, or aggravation thereof, from VA hospitalization or medical or surgical treatment, or (3) is the continuance or natural progress of diseases or injuries for which VA hospitalization or medical or surgical treatment was authorized, or (4) is the certain or near certain result of the VA hospitalization or medical or surgical treatment. Where a causal connection exists and there is no willful misconduct and the additional disability does not fall into one of the above-listed exceptions, the additional disability will be compensated as if service connected. Accordingly, the case is now ready for review by the Board in compliance with the August 16, 1993, Order of the Court. The veteran is service-connected for alopecia areata, evaluated as 30 percent disabling since January 19, 1962. A decision of the Board in December 1987 denied service connection for vitiligo and a psychiatric disorder as not secondary to the veteran's service-connected alopecia areata. Vitiligo is usually progressive, chronic pigmentary anomaly of the skin manifested by depigmented white patches that may be surrounded by a hyperpigmented border; it is associated with a dominantly inherited predisposition, and it has been speculated that autoimmune mechanisms are involved in the etiology. Dorland's Illustrated Medical Dictionary, 1846 (27th ed. 1988). A VA outpatient treatment (VAOPT) record of May 16, 1984, noted that the veteran had been diagnosed as having (nonservice- connected) hypertension in 1981 for which he had been placed on a low salt diet and weight loss regimen. He had no known allergies and was prescribed 50 milligrams per day of hydrochlorothiazide (HCTZ), an antihypertensive medication. A VAOPT of July 25, 1984, noted a rash on the veteran's forearms which were described as white spots and two VAOPT clinical notations in August 1984 indicated that the skin condition, described as dermatitis, could be due to HCTZ which was changed to Lopressor. A dermatology VAOPT record of March 14, 1985, first diagnosed vitiligo. A September 16, 1985, VAOPT notation from a VA rehabilitation medical clinic physician reflects that a medical text, Dermatology in General Medicine, (2nd ed. 1979) states that "[v]itiligo is seen more commonly in patients with alopecia areata." The Board has reviewed that text which states, at page 582, that vitiligo is a common acquired idiopathic hypomelanosis which is often familial and, at page 587, that alopecia areata is reported in up to 16 percent of patients with vitiligo. Further the text states, at page 588, that the pathogenesis of vitiligo is unresolved but there are three theories, the immune hypothesis, neural hypothesis, and self-destruct hypothesis, as well as a composite hypothesis consisting of a combination of the foregoing. A VAOPT of November 13, 1987, indicates that the veteran's vitiligo might be questionably secondary to sensitivity to HCTZ. A VAOPT internal medicine notation of March 28, 1989, indicated that he had developed a rash from "Dyazide," causing vitiligo. In a May 1986 statement Dr. David Mosher, a dermatologist, reported that the veteran was receiving phototherapy for vitiligo which had developed following an eruption which had been attributed to thiazide medication and that when the eruption had resolved, leukoderma had become apparent. The physician asked that the veteran's hospital records be released for review but commented preliminarily that in those predisposed to vitiligo any injury to the skin could cause leukoderma. In a person predisposed, an eruption could, after resolving, cause vitiligo to emerge. However, "thyazides" did not cause vitiligo but could cause a rash which in a person with vitiligo "diathisis" [diathesis] may precipitate more spread of vitiligo. Diathesis is a constitution or condition of the body which makes the tissues react in special ways to certain extrinsic stimuli and thus tends to make the person more than usually susceptible to certain diseases. Dorland's Illustrated Medical Dictionary, 465 (27th ed. 1988). The veteran testified that when he was informed by a VA physician that he should take antihypertensive medication he had requested hydrochlorothiazide medication because he had heard that it was a mild form of medication and it was immediately prescribed by the VA physician (page 1 of the May 1988 and page 5 of the July 1989 hearing transcripts). He testified that he was given no blood chemistry test prior to being given that prescription, was never aware of having an allergy to that medication, and was never advised of the possible side effects of the medication (page 5 of the July 1989 hearing transcript). In a June 1990 letter he indicated that if such a blood chemistry test had been performed it would have revealed that he was better suited for beta-blocker medication than for HCTZ. It is contended that the prescribing VA physician never took the veteran's medical or physical history prior to prescribing HCTZ and that there is no evidence to establish that the prescription of such medication was appropriate, even if the veteran was predisposed to vitiligo. The veteran also testified (page 1 of the May 1988 transcript and page 6 of the July 1989 transcript) that after being prescribed HCTZ medication he was not given any follow-up appointment for three months, which was too long a period of time for a person being initially placed on antihypertensive medication, during which time he broke out in a rash. He testified that a VA dermatologist informed him that he was allergic to HCTZ (page 2 of the May 1988 transcript) and that he subsequently received treatment by Dr. Mosher at the Massachusetts general medical facility (page 2 of the May 1988 transcript). It is also contended that the May 1986 statement of Dr. Mosher is unrebutted. Lastly, in light of the change in law the case must be remanded for due process purposes in order to afford the RO the opportunity to readjudicate the claim under the VA interim final rule revising 38 C.F.R. § 3.358. Accordingly, the case is REMANDED for the following actions: 1. The veteran should be contacted in writing and requested to execute the necessary authorization forms for obtaining all private clinical records from Dr. Mosher and the medical facility in Massachusetts where the veteran had been treated. If obtained, those records should be associated with the claims folder. 2. The RO should obtain a medical opinion from a VA dermatologist who should review the entire claims folder and who should be requested to express an opinion as to the degree of probability of a causal connection between the administration of hydrochlorothiazide medication to the veteran and his subsequent development of vitiligo. If necessary in reaching such a determination the dermatologist should render an opinion as to the significance, if any, of there not having been conducted a blood chemistry test prior to the veteran's being prescribed HCTZ. 3. If these matters cannot be medically determined without resort to mere conjecture, this should be commented upon by the physician. 4. If necessary, or if it would facilitate the dermatologist in rendering his opinion, the veteran should be afforded a comprehensive VA dermatology examination by the physician rendering the opinion and, if conducted, the entire claims folder should be made available for review by the physician prior to the examination in order to facilitate study of the case. 5. Following completion of the foregoing, the RO must review the entire claims folder and ensure that all the foregoing development actions have been conducted and completed in full. If any development is incomplete, including the possibility that the requested medical opinion does not include all requested information, appropriate corrective action should be taken. 6. Lastly, after all other development has been completed, the RO should readjudicate the veteran's claim under the revised regulation now in effect. In order to avoid undue delay in this case, the RO should make certain that the instructions contained in this REMAND decision, detailing the requested development, have been substantially complied with. If the claim remains denied, the veteran and his representative should be issued a Supplemental Statement of the Case. They should be afforded the appropriate period of time within which to respond thereto. Then, if otherwise in order, the case will be returned to the Board for further appellate consideration. No action by the veteran is required until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case. HOLLY E. MOEHLMANN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).