Citation Nr: 1136632 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 08-12 793 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for loss of the right fifth toe. 2. Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for right lower extremity disability. 3. Entitlement to service connection for impotence, as secondary to right lower extremity disability. 4. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure and secondary to right lower extremity disability. 5. Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as due to herbicide exposure and secondary to diabetes mellitus, type II. 6. Entitlement to service connection for bilateral upper extremity peripheral neuropathy, to include as due to herbicide exposure and secondary to diabetes mellitus, type II. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and A.B. ATTORNEY FOR THE BOARD B. Ogilvie, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1965 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied the Veteran's claim for entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for loss of the right fifth toe. This matter also comes before the Board on appeal from an April 2008 rating decision, which denied the Veteran's claims for service connection for right hip pain and impotency, and a July 2008 rating decision, which denied the Veteran's claims for service connection for diabetes mellitus, type II, peripheral neuropathy of the bilateral lower extremities, and bilateral neuropathy of the bilateral upper extremities. In August 2011, the Veteran and A.B. testified before the undersigned Veterans Law Judge at a Board hearing at the Oakland RO. A copy of the transcript is of record. As a final preliminary matter, the Board notes that the RO denied service connection for right hip pain in an April 2008 rating decision. The evidence of record reflects, however, that the Veteran has argued that his right lower extremity disability (including, but not limited to, hip problems) was caused by negligence in VA care. As such, the Veteran claims entitlement to compensation for right lower extremity disability, pursuant to 38 U.S.C.A. § 1151. In April 2008, the RO adjudicated the claim under the provisions of 38 U.S.C.A. § 1151. Thus, the Board has recharacterized this claim in light of the Veteran's arguments and assertions, as well as what the RO has actually adjudicated, as set forth on the title page. 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 The Board's review of the claims file reveals that further RO action on the claims on appeal is warranted. In March 2007, the Veteran informed the Board that he has been receiving Social Security Administration (SSA) benefits since 2003. While SSA records are not controlling for VA determinations, they may be pertinent to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). Hence, when the VA is put on notice of the existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. See Murincsak; see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). Thus, the Board finds that the RO should obtain and associate with the claims file a copy of SSA's determination on the Veteran's claim, as well as copies of all medical records underlying that determination. Moreover, the Board finds that a medical opinion-based on full consideration of the Veteran's documented history (to include current findings) and supported by fully-stated rationale-is needed to resolve the Veteran's claims. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In September 2005, the Veteran was admitted to the San Francisco VA Medical Center for an abdominal aortic aneurysm repair. He had a history of coronary artery disease, status post previous stenting to the distal right coronary artery, and severe peripheral vascular disease with known abdominal aortic aneurysm. The Veteran presented with exertional and subsequently rest angina. The Veteran's abdominal aortic aneurysm repair was therefore postponed, and a cardiac catheterization was scheduled. The indications, risks, benefits, and alternatives to cardiac catheterization were discussed at length with the Veteran who understood and wished to proceed. The surgeon attempted multiple times to pass a 6 French and subsequently a 5 French JR4 catheter and Wholey wire via the right femoral access site, but there was marked tortuosity in the right common iliac and subsequently in the abdominal aorta. The wires and catheters advanced easily into the distal abdominal aorta, but then met considerable resistance. Final iliac angiography revealed patency of the left external iliac without extravasation or obvious dissection. The surgeon made the decision to attempt a left heart catheterization via the right brachial approach. No immediate complications were noted after completion of the surgery. In the subsequent days, the Veteran developed a fever and diffuse petechia in the right lower extremity along with an erythematous and painful right knee. He also complained of increasing right hip and right ankle pain. The Veteran's knee was aspirated, and Staph aureus was found in the microbiology analysis. The Veteran was found to have right knee, right hip, and right ankle septic arthritis. This required aspiration and surgical irrigation and debridement with placement of JP drains secondary to septic arthritis with Staph aureus. The physicians subsequently discovered that the patient had an infected thrombus within the right external iliac, which later required surgical excision. A consequence of the septic emboli was necrosis of the right fifth toe, which progressively developed into wet gangrene. To prevent further infection, the Veteran's toe was amputated in October 2005. In mid-December the Veteran noticed an increase in right hip pain, as well as new swelling, redness, and warmth in the right inguinal area. The swelling got progressively larger, and a CT scan revealed loculated fluid collection contiguous with the right hip joint. In January 2006, the Veteran had an incision and drainage of the right hip. An April 2006 CT of the right hip revealed osteomyelitis of the proximal right femur and acetabulum with extensive inflammatory changes in the soft tissues anterior to the proximal femur and upper thigh. The Veteran argues that the amputation of his right fifth toe and his right lower extremity disabilities were proximately caused by negligence by the VA Medical Center(s). He also argues that these additional disabilities caused or aggravated several other disabilities, such as impotence, diabetes mellitus, type II, and peripheral neuropathy. As such, a medical opinion and a possible examination are required. Accordingly, the case is REMANDED for the following action: 1. The RO should request from SSA a copy of its determination on the Veteran's claim for disability benefits, as well as copies of all medical records underlying its determination. In requesting these records, the RO should follow the current procedures of 38 C.F.R. § 3.159(c) (2010) with respect to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The RO should obtain from the San Francisco and Fresno VA Medical Centers all updated, pertinent records of evaluation and/or treatment. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, the claims file should be forwarded to a cardiologist who did not treat the Veteran and who is unaffiliated with any medical facility involved in his treatment. The claims file must be made available to the physician for a full review. After a thorough review of the record, the reviewing physician must respond to the following, providing a full statement of the basis for all conclusions reached: (a) Identify the additional disabilities (to include loss of the right fifth toe and any right lower extremity disability) that arose due to VA treatment; (b) As to each diagnosed additional disability, is it at least as likely as not (i.e., there is a 50 percent or greater probability) that the proximate cause of the Veteran's additional disability is: (i) the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical treatment in September and October 2005? The examiner should also discuss whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider or VA furnished the hospital care, medical or surgical treatment, or examination without informed consent. OR (ii) due to an event which was not reasonably foreseeable (based on what a reasonable health care provider would have foreseen)? The cardiologist must provide a full rationale for any opinion offered. 4. If the board-certified cardiologist answers in the affirmative to either of the above questions, the RO should schedule the Veteran for a VA examination, with an appropriate examiner, to determine the etiology of the Veteran's impotence, diabetes mellitus, type II, and peripheral neuropathy. The entire claims file, to include a complete copy of this REMAND, must be made available to the examiner designated to examine the Veteran, and a report of the examination should include discussion of the Veteran's documented medical history and assertions. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should clearly discuss whether the Veteran has a current diagnosis of impotence, diabetes mellitus, type II, and/or peripheral neuropathy of the bilateral upper and lower extremities. Then, with respect to each such diagnosed disability, the physician should offer an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability), that the disability was caused or aggravated (beyond the natural course and scope of the disability) by the Veteran's right lower extremity disability and/or loss of the right fifth toe. In rendering the requested opinion, the physician should specifically consider the numerous treatment records, as well as the Veteran's contentions. 5. If the Veteran fails to report to any scheduled examination, the RO should obtain and associate with the claims file a copy of any notice of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims on appeal in light of all pertinent evidence and legal authority. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate Supplemental Statement of the Case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the 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. 2010). _________________________________________________ WAYNE M. BRAEUER 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) (2010).