Citation Nr: 0815209 Decision Date: 05/08/08 Archive Date: 05/14/08 DOCKET NO. 05-36 825 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUES Entitlement to compensation (DIC) under 38 U.S.C.A. § 1151 as a result of VA treatment, to include claimed right and left shoulder disabilities, bilateral hip disability and bilateral leg condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The veteran served on active duty from May 1949 to October 1952. This case come before the Board of Veterans' Appeals (Board) on appeal from August 2004 and April 2006 rating decisions by the RO that denied the veteran's claims for compensation benefits under 38 U.S.C.A. § 1151 as the result of VA treatment, to include right and left shoulder disability, bilateral hip disability and bilateral leg condition. In March 2008, the veteran, accompanied by his representative, testified at a hearing before the undersigned Veteran's Law Judge at the RO. A transcript of these proceedings has been associated with the veteran's claims file. In April 2008, the Board granted the veteran's motion to have his case advanced on the Board's docket. The appeal is being 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 After a careful review of the claims folder, the Board finds that the veteran's claim must be remanded for further action. In his March 2008 hearing testimony, the veteran identified medical evidence that was relevant to his claim that had not been associated with the claims file. Specifically, the veteran indicated that he had been seen by his private physician, Dr. Fisher, and had been treated at St. Mary's Hospital, Cabell Huntington Hospital, Columbus, Ohio, Methodist Hospital and the VA Medical Center in Huntington, West Virginia. The veteran indicated that he was status post total bilateral hip replacement and had had bilateral shoulder replacement as well, all since he was treated for physical therapy in early 2000 by VA. Here, the Board notes that the veteran's claims file contains medical records from St. Mary's Hospital and Cabell Huntington Hospital dated in 1999 and earlier, and also records from the VA Medical Center dated as of June 2007. There are also records of the veteran's treatment with Dr. Fisher dated as of February 2001. The records from these providers since these dates, however, have not been associated with the veteran's claims file. The veteran should also be afforded an opportunity to submit any recent medical records or opinions pertinent to his claims that have not already been associated with the veteran's claims file. In this regard, the Board notes that records generated by VA that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Pursuant to the VCAA, VA must obtain outstanding VA and private records. See 38 U.S.C.A. § 5103A(b-c) (West 2002); 38 C.F.R. § 3.159(c) (2004). In addition, during the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. The reasoning of this case also applies here. In the present appeal, the veteran was provided with notice of what type of information and evidence was needed to substantiate his claim, but he was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. This case must therefore be remanded for proper notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). In view of the above, this matter is REMANDED to the RO for the following actions: 1. The RO should send the veteran and his representative, if any, a letter that complies with the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The letter should explain, what, if any, information and (medical and lay) evidence not previously provided to VA is necessary to substantiate the claim. The letter should indicate which portion of the evidence, if any, is to be provided by the veteran and which portion, if any, VA will attempt to obtain on his behalf. The letter should also request that the veteran provide any evidence in his possession that pertains to the claim, and should contain an explanation as to the information or evidence needed to establish a disability rating and effective date for the claims on appeal, as outlined by the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006). 2. The RO should take appropriate steps to contact the veteran and request that he identify all VA and non-VA health care providers, other than those already associated with the veteran's claims file, that have treated him since service for his shoulders, hips and legs. This should specifically include medical and treatment records from the Huntington, West Virginia, VA Medical Center dated since June 2007, from St. Mary's Hospital and Cabell Huntington Hospital, dated since 1999, from the veteran's private physician, Dr. Fisher, dated since February 2001, and from Columbus, Ohio, Methodist Hospital, dated since service. The aid of the veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the veteran should be informed in writing. 3. After associating with the claims folder all available records received pursuant to the above-requested development, and only if warranted by any additional evidence received, the RO should arrange for the veteran's claims folder to be reviewed by the examiner who prepared the March 2004 VA examination report (or a suitable substitute if that examiner is unavailable), for the purpose of preparing an addendum that addresses whether any additional evidence associated with the veteran's claims file since March 2004 indicates whether the veteran has bilateral shoulder, bilateral hip, and bilateral leg conditions that resulted from negligence or fault on the part of VA treatment providers, specifically VA physical therapy care in early 2000. It is imperative that the examiner who is designated to examine the claims file reviews the evidence in the claims folder, including a complete copy of this REMAND, and acknowledges such review in the examination report. The examiner should also comment on whether any bilateral shoulder, bilateral hip, or bilateral leg disability was a condition not reasonably foreseeable as a result of the veteran's VA physical therapy care in early 2000. In rendering an opinion, the examiner should cite, as appropriate, to the veteran's private and VA treatment records. If the examiner is unable to provide the requested information with any degree of medical certainty, the examiner should clearly indicate that. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached, in a legible report. 4. After completion of the foregoing, and after undertaking any further development deemed warranted by the record (and keeping in mind the dictates of the Veterans Claims Assistance Act of 2000), the RO should again adjudicate the veteran's claim of entitlement to compensation under 38 U.S.C.A. § 1151 in light of all pertinent evidence and legal authority. The RO should furnish the veteran a relevant Supplemental Statement of the Case, to include notification of the law and regulations pertinent to the veteran's claim under 38 U.S.C.A. § 1151 and afford him a reasonable opportunity to respond thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ STEPHEN L. WILKINS 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) (2007).