Citation Nr: 0814795 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 06-29 179 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES Entitlement to service connection for residuals of below-the- knee amputation of the left leg. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. A. Booher, Counsel INTRODUCTION The veteran had active service from June 1942 to January 1946. He was born in 1925. This appeal to the Board of Veterans' Appeals (Board) is from action taken by the above Department of Veterans Affairs (VA) Regional Office (RO) in February 2005. The claim was initially filed in October 2004, when the RO received a Statement in Support of Claim (VA Form 21-4138) from the veteran stating that he was requesting service-connected disability compensation for his left lower leg amputation, which he ascribed to a fracture which he said he had sustained in service in November 1942. He had more recently undergone several operations on his left ankle and leg in 2003, culminating in the claimed amputation. The RO provided the veteran with a Statement of the Case on the service connection issue in August 2006. He submitted a VA Form 9, Appeal to Board of Veterans' Appeals, in September 2006, in which he indicated that he continues to believe that his in-service fracture led to all his current left leg disability. He further stated that, in the alternative, he believes that the 2003 surgeries, including a post-operative infection, caused the disability which required the amputation. The veteran's local representative, in a statement in October 2006, raised the issue of possible entitlement to compensation under 38 U.S.C.A. § 1151 (i.e., benefits for the post-surgical disability "as if " it were service connected, based upon alleged negligence or other improper action by VA medical personnel) for the amputation of the left leg, instead of service connection. When the RO notified the veteran, later that month, that his case was being certified to the Board for appellate review, the letter provided him with information on claims for benefits under section 1151, but quoted from the regulation pertinent to claims filed prior to October 1, 1997, i.e., 38 C.F.R. § 3.358, and not 38 C.F.R. § 3.361, which pertains to claims filed on or after that date. In April 2008, Appellant's Brief was filed before the Board by his representative, asserting that service connection should be granted, but that 38 U.S.C.A. § 1151 should be considered in the alternative if service connection cannot be granted. Since the issue of entitlement to compensation under 38 U.S.C.A. § 1151 has not yet been developed or adjudicated, it is not now on appeal, and is hereby referred to the RO for appropriate action. The Board recognizes that service connection, if granted, would be the greater benefit, and we defer to the RO to determine when to act on the section 1151 issue. In September 2006, the veteran withdrew in writing his earlier request for a Travel Board hearing. In April 2008, a Board Deputy Vice Chairman granted the veteran's representative's motion to advance the case on the docket pursuant to 38 U.S.C.A. § 7107 and 38 C.F.R. § 20.900(c). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action is required. REMAND The available service medical records (SMRs) were obtained by the RO in 1949 in conjunction with another claim, and are very limited. They do contain some treatment records, and the entrance and separation examinations, but do not reflect the veteran's having broken his leg. After he recently asked to have copies of these documents, he was understandably disappointed that there was no mention of the fracture. The veteran has consistently averred that he sustained a lower left leg fracture when some ammunition containers shifted during a storm and struck him while he was serving on the escort carrier USS SANTEE, CVE-29, cruising from Africa to home base in Norfolk, Virginia, in November 1942 after the North African invasion. In a statement received by the RO on November 1, 2004, he said he had experienced trouble with his left leg and ankle giving way and twisting for many years. He went to the VA Medical Center in Long Beach, California, where the prosthetic department made him a brace which he wore for years, until they recommended an ankle fusion. Then, after the fusion surgery in April 2003, the area became infected and he underwent revision in June 2003 and amputation in December 2003. The veteran was sent a detailed letter requesting any pertinent evidence he might have in October 2004, shortly after he filed the present claim. That, however, was before he learned that the SMRs in the possession of the RO did not document his claimed in-service fracture. His representative has argued that the veteran was in combat and therefore must be considered credible. We have no reason to doubt the veteran's credibility, and we note that he has not contended that his claimed injury occurred in a combat situation, but in a storm at sea. However, it may be helpful to his claim if records of his in-service injury, and of the treatment given to him, could be secured. A fellow service member stated in 1949 that the veteran had been a member of his gun crew on the USS BATAAN from 1944- 1945 in the Philippines. It appears, however, that the claimed injury occurred several years earlier, on the SANTEE. No other pertinent records are in the file relating to that ship, that period, or even that theatre of operations. VA examinations in 1949 and 1954 made no mention of leg problems, but were admittedly undertaken solely with regard to dermatological complaints rather than orthopedic concerns. He had been seen by a private physician on one occasion, and was seen at VA in the mid-1970's for ear complaints and in the late 1980's for other complaints. He was seen in July 1989 after having twisted his left ankle four days before. However, only isolated VA records are in the file; it may well be that other records are available. He has mentioned several VA facilities in various contexts, but it is unclear as to in which VA facilities the veteran may have received care for his left leg prior to the surgical procedures which led to this claim. Recent VA clinical records show that, when seen in 1989, he had been found to have degenerative changes. Since then, he had experienced recurring problems with the left lower extremity, as well as an ankle fusion and revision in 2003 from which infection developed and which required amputation in December 2003. The veteran filed his claim for left leg amputation in 2004. He later explained that he had experienced left leg problems for many years since the in-service fracture. Other than the VA clinical records since his 1989 ankle injury, the record contains no post-service clinical records showing the veteran's being seen for left leg or ankle trouble, although the RO sent him a letter in October 2004 which gave him detailed instructions as to the types of evidence he could submit in support of his claim. In essence, he contends that the fracture in service resulted in the need for the recent surgery, from which an infection developed and from which he lost the leg. However, the record does not contain the records surrounding the operations, which might include history of the disorder which necessitated the procedures. Accordingly, the case is REMANDED for the following action: 1. Ask the veteran to identify any treatment he was provided for his left lower extremity between his separation from the Navy in 1946 and his ankle fusion in 2003, to specify the facilities involved, and to provide the names and addresses of any non-VA providers; then obtain any records so identified. 2. Ask the veteran to provide any additional information he may have as to his in-service injury, e.g., statements from service comrades, copies of letters home, etc. 3. Request, from the appropriate service department, records of the veteran's treatment for an injury to his left lower extremity aboard the escort carrier USS SANTEE, CVE-29, beween October and December 1942. 4. Obtain, from the VAMC in Long Beach, CA, reports of the veteran's surgeries in 2003, to include pre-operative diagnoses and history. 5. Then, refer the case to an orthopedic physician for a nexus opinion. The claims file must be available for review by the physician in conjunction with the review of the case. a. The examiner should be requested to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the disability of the veteran's left lower extremity which required ankle fusion surgery in 2003 was causally related to an in-service injury in 1942, or whether such a causal relationship is unlikely (i.e., less than a 50-50 probability). In so doing, the reviewer should address any other possible causes of the disability presented in the records. b. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. c. If the answer to the question posed above cannot be determined on a medical or scientific basis and without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report, and explain why this is so. 6. Once the above-requested development has been completed, the veteran's claim should be re-adjudicated. If the decision remains adverse to the veteran, he and his representative must be provided with an SSOC and an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The appellant 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a final decision of the Board of Veterans' Appeals is appealable to the U.S. Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a final decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2007).