Citation Nr: 0526146 Decision Date: 09/23/05 Archive Date: 10/05/05 DOCKET NO. 00-25 062 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of a retained flexible tip of guide wire in the perinephric fatty tissue. REPRESENTATION Veteran represented by: Theodore C. Jarvi, Esq. ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The veteran served on active duty from March 10 to March 30, 1972. This matter originally came to the Board of Veterans' Appeals (Board) from a September 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In a February 2002 decision, the Board denied compensation under 38 U.S.C.A. § 1151 for residuals of a retained flexible tip of guide wire in the perinephric fatty tissue. The veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2003 memorandum decision, the Court vacated the Board's February 2002 decision and remanded the matter for readjudication. As set forth in more detail below, a remand of this matter is required. The appeal is remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required on his part. REMAND The veteran claims entitlement to compensation under 38 U.S.C.A. § 1151, alleging that VA surgeons broke off the tip of guide wire in the perinephric fat of the retroperitoneal tissue during surgery in August 1998. He contends that this retained guide wire tip produces right flank pain and makes him feel as if he must limit his activities. In connection with his claim, the veteran was afforded a VA medical examination in March 2001. The examining physician reviewed the veteran's claims folder and noted that a guide wire had broken off in the perinephric fatty tissue during August 1998 surgery. He concluded, however, noted that "there is no reason that this should give him any problem whatsoever." The VA physician explained that stainless steel wire is routinely used for suture material in many operative procedures and is left indwelling in the body with no ill effects. He indicated that the small tip of the guide wire which apparently broke off during the August 1998 surgery would have no residual ill effect on the veteran. Based on the March 2001 medical opinion and the other evidence of record, the Board concluded that the preponderance of the evidence showed that the veteran did not have additional disability resulting from VA surgical treatment, including a retained small fragment of stainless steel guide wire in his perinephric fatty tissue. In its March 2003 decision, however, the Court determined that the record on appeal contained no evidence that the veteran was afforded "a thorough and contemporaneous medical examination" in connection with his claim, as required by the Veterans Claims Assistance Act of 2000 (VCAA). The Court indicated that the March 2001 medical opinion relied upon by the Board was based only on a review of the veteran's claims folder and did not include a physical examination. Thus, the Court found that the Board's decision was not supported by the evidence of record and was contrary to the duty-to-assist provisions of the VCAA. The Board notes that 38 U.S.C.A. § 5103A(d)(1) (West 2002) provides that the assistance provided by VA "shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim." (Emphasis added). Although the Board disagrees with the Court's reading of 5103A(d)(1) that obtaining a medical opinion, rather than an actual physical examination, is required to fulfill the duty to assist, such is now the law of this case. In that regard, the Board has considered the recent contentions of the veteran's attorney to the effect that an examination is not necessary in light of the fact that he has submitted a September 2003 medical opinion from Craig N. Bash, M.D. A review of Dr. Bash's opinion, however, indicates that he did not conduct a physical examination of the veteran in rendering his opinion. In light of the Court's decision, the Board finds that a remand for a physical examination is now necessary. Also in its decision, the Court found that the veteran had not received adequate notification regarding "who is responsible for obtaining the evidence necessary to substantiate his claim for entitlement to service connection pursuant to section 1151." Thus, the RO must provide the veteran with the appropriate VCAA notification. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2004). In view of the foregoing, this matter is remanded for the following action: 1. The RO should review the record and send an appropriate letter to the veteran to ensure compliance with all notice and assistance requirements set forth in the VCAA and its implementing regulations. 2. The veteran should be scheduled for a VA medical examination. The claims folder should be provided to the examiner in connection with the examination of the veteran. After physically examining the veteran and reviewing the claims folder, the examiner should provide an opinion as to whether it is at least as likely as not that the veteran currently has any additional disability attributable to the retained tip of guide wire in the perinephric fatty tissue. If any such additional disability is identified, the examiner should be asked to provide an opinion as to whether the record reflects carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA medical personnel in furnishing health care to the veteran. If any such additional disability identified is a common and expected side-effect of the treatment provided by VA, or conversely if any such disability is unforeseeable, this should be stated. 3. After the development requested above has been completed, the RO should again review the record. If the benefit sought on appeal remains denied, the veteran and his attorney should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The veteran has the right to submit additional evidence and argument on the matter or 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 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 Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2004).