Citation Nr: 1302286 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 10-08 554 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for recurrent staph infections due to an August 1982 VA surgery during which a pedicle flap graft was sutured to the left index finger. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran had active duty service from June 1972 to July 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In August 2012, the Veteran testified before the undersigned Veterans Law Judge sitting at the RO. The hearing transcript has been associated with the claims file. At the Board hearing, the Veteran submitted additional evidence along with a waiver of agency of original jurisdiction (AOJ) consideration of such evidence. 38 C.F.R. § 20.1304(c) (2012). Therefore, the Board may properly consider such newly received evidence. Nevertheless, in light of the need to remand for further development, the AOJ will also have the opportunity to review this evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND The present appeal involves the issue of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for recurrent staph infections due to an August 1982 VA surgery during which a pedicle flap graft was sutured to the left index finger. In July 1982, the Veteran presented to the VA emergency room after a self-inflicted gunshot wound to the left index finger. Due to extensive tissue loss, a skin graft to the right chest wall was done. Subsequently, in August 1982, the pedicle flap was removed from the chest wall and sutured to the left index finger. The Veteran asserts that he has experienced recurrent staph infections since undergoing surgery to have the skin graft placed on his left index finger. The Board observes that the Veteran has not been afforded a VA examination so as to determine whether he has any additional disability resulting from the August 1982 VA surgery, and whether any additional disability is due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA facility care or medical treatment. Accordingly, the Board finds that a VA medical examination with an opinion is necessary for proper appellate review of the claim. Additionally, at his Board hearing, the Veteran submitted additional VA treatment records that were printed in August 2012. It appears that the most recent VA treatment records obtained by the AOJ are from May 2009. A review of the Veteran's Virtual VA electronic record does not reveal any additional VA treatment records. Accordingly, as VA medical records are constructively of record and must be obtained, the AOJ should obtain VA treatment records from May 2009 to the present. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Moreover, the claims file indicates that the Veteran is receiving disability benefits from the Social Security Administration (SSA). The Board observes that VA is required to obtain evidence from SSA, including decisions by the administrative law judge. See Hayes v. Brown, 9 Vet. App. 67, 74 (1996): Murincsak v. Derwinski, 2 Vet. App. 363 (1992). However, it appears that the Veteran is receiving these benefits for unrelated disabilities. To ensure that these records are not relevant to the current appeal, the AOJ should contact the Veteran and request whether his SSA disability benefits are in any way related to the gunshot wound to the left index finger or his recurrent staph infections. If so, these records must be obtained. Lastly, in October 2008, the Veteran received notice under the Veteran Claims Assistance Act of 2000 (VCAA), now codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West Supp. 2002). However, he was not provided with notice of the type of evidence necessary to establish a disability rating or effective date in accordance with Dingess/Hartman 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. Therefore, while the case is on remand, the AOJ should provide the Veteran additional VCAA notice to comply with Dingess/Hartman. Accordingly, the case is hereby REMANDED for the following actions: 1. The AOJ should contact the Veteran and request whether his SSA disability benefits are in any way related to the gunshot wound to the left index finger or his recurrent staph infections. If so, these records should be obtained. The notice should also include an explanation as to the information or evidence needed to establish a disability rating and effective date for the claim on appeal, as outlined in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The AOJ should obtain VA treatment records from May 2009 to the present. 3. After obtaining any outstanding records, the Veteran should be afforded an appropriate VA examination for the purpose of determining whether the Veteran has recurrent staph infections or any additional disability that is/are etiologically related to the August 1982 VA skin graft surgery. The claims file should be made available to the examiner for review in connection with the examination. After examining the Veteran and reviewing the claims file, the examiner should offer an opinion as to the following: a) Is there is at least as likely as not (a 50 percent probability or greater) that the Veteran incurred recurrent staph infections or any other additional disability as a result of the August 1982 VA skin graft surgery? If so, please describe the degree of additional disability. b) If any such additional disability did result from the August 1982 skin graft surgery, was the proximate cause of any such disability or aggravation the result of either (i) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA facility care or medical treatment or (ii) an event not reasonably foreseeable. A complete rationale for the opinion expressed should be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter 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 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. 2012). _________________________________________________ A. JAEGER 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) (2012).