Citation Nr: 0709272 Decision Date: 03/29/07 Archive Date: 04/16/07 DOCKET NO. 05-21 280A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of toxic epidermal necrolysis, sepsis, and colitis. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his brother ATTORNEY FOR THE BOARD M. Donovan, Associate Counsel INTRODUCTION The veteran served on active duty from February 1952 to January 1954. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied compensation under 38 U.S.C.A. § 1151 for residuals, toxic epidermal necrolysis, residuals of sepsis, and colitis. The veteran testified before the undersigned at a videoconference hearing in February 2007. A transcript of that hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2006). In Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court held that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. The Board commits remandable error if it does not obtain these records. Id; see also 38 U.S.C.A. § 5103A(c) (requiring VA to obtain pertinent VA records); 38 U.S.C.A. § 5103A(b) (requiring VA to obtain pertinent records that are adequately identified). The veteran asserts that he sustained additional disability during treatment at the Huntington VA Medical Center (VAMC). In his September 2004 claim he stated that toxic epidermal necrolysis, colitis, and sepsis were caused by an allergic reaction to Cipro given at the Huntington VAMC in November 2003. At the February 2007 videoconference hearing the veteran's brother testified that in 2003 the veteran was admitted for a heart condition, and that he underwent a catheterization, resulting in a blood infection. The veteran's brother stated that the veteran went home, but that he brought the veteran back to the VAMC because he started "acting really funny." VA treatment records beginning with November 18, 2003 have been associated with the claims file. The record from this date indicates that the veteran was transferred to the medical intensive care unit (MICU) for sepsis and hypotension. VA treatment records give a history of the veteran being admitted earlier in November for a left heart catheterization and percutaneous transluminal coronary angioplasty. A December 2003 discharge summary indicates that the veteran's initial diagnosis on admission to the floor was congestive heart failure, and that he also had scrotal swelling secondary to groin hematoma. The discharge summary further notes that, while on his stay on the floor, the veteran was found to be lethargic but fully oriented with urinalysis positive for infection. The impression was urosepsis and the veteran was started on Cipro and then transferred to the MICU. The VA treatment records from November 2003, prior to transfer to the MICU have not been associated with the claims file. As the December 2003 discharge summary indicates that the veteran was diagnosed with urosepsis and started on Cipro prior to this transfer, the Board finds that these records are potentially pertinent to the claim on appeal. In addition, at the February 2007 videoconference hearing, the veteran's brother testified that the veteran had been treated for a rash on his legs a couple of weeks prior to the hearing, adding that he had probably been back to the VA ten times for the skin condition on his legs. The veteran's brother also reported that he knew when the veteran needed to go to VA because he would become incoherent, and that the veteran had been admitted a couple of weeks earlier. The most recent VA treatment records associated with the claims file are from April 2004. The veteran's brother also testified that the veteran had a colonoscopy and that the doctor told both of them what the veteran could and could not eat because of pits in his colon. The veteran's brother testified that the veteran had a colonoscopy previously which did not include such findings. The Board notes that reports of these colonoscopies have not been associated with the claims file, but are potentially pertinent to the claim in regard to residuals of colitis. As any records of treatment for residuals of toxic epidermal necrolysis, sepsis, and colitis are potentially pertinent to the claim on appeal and are within the control of VA, they should be obtained and associated with the claims file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding records of VA treatment pertinent to the claim on appeal, in particular, records of treatment from the Huntington VAMC from November 2003, prior to the veteran's transfer to the MICU, and from December 2003 to the present. 2. After ensuring the above, and any additional development deemed appropriate, is complete, re-adjudicate the claim. If the claim is not fully granted, issue a supplemental statement of the case before returning the claims to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter that 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). _________________________________________________ C. TRUEBA Acting 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) (2006).