Citation Nr: 1305231 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 09-35 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to benefits under 38 U.S.C. § 1151 for a left ankle injury. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from July 1972 to September 1978. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In April 2008 the Veteran filed a claim seeking benefits under 38 U.S.C. § 1151 for a left ankle disability he alleged is the result of negligence in treatment received by the VA. In a March 2009 rating decision the RO denied the Veteran's claim finding the Veteran did not establish that treatment provided by the VA was the proximate cause of his additional disability. The Veteran then timely appealed this matter to the Board. The evidence of record before the Board includes some private treatment records and some VA treatment records. Additional VA treatment records are found in the Veteran's "Virtual VA" file which were submitted by the Veteran, however it does not appear any VA treatment records were associated with the Veteran's "Virtual VA" file by the RO. Nevertheless, evidence in the record suggests there are additional VA treatment records which are not associated with the file before the Board. Specifically in December 2008 the VA treatment facility in Puget Sound sent a letter to the RO indicating that all the Veteran's treatment records were available "via the CAPRI/CPRS computer system." However, no CAPRI files from the VA in Puget Sound were associated with the Veteran's "Virtual VA" file or the Veteran's physical file, and were therefore not transferred to the Board. The March 2009 rating decision from the RO specifically references some of these records, including the record of treatment for an ankle injury in October 2007. This record is not available for the Board's consideration and would be highly probative in assessing the Veteran's claim. As such, all VA treatment records for the Veteran, including those in the CAPRI computer system, need to be obtained and associated with the claims file before the Board before a determination can be made in this matter. Additionally, the file includes the Veteran's application for Social Security disability benefits in March 2009, however the Veteran's social security records are not associated with the claims file. These records may be relevant to the Veteran's claim, and the VA has a duty to assist the Veteran in obtaining records held by government agencies under 28 U.S.C. § 5103A(c)(3). As such, the Veteran's Social Security records also need to be obtained and associated with the claims file. Finally, the Board notes that a recent decision by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) may be applicable in this claim. In Viegas v. Shinseki the Federal Circuit held that a plain reading of the language of 38 U.S.C.A. § 1151 does not impose any requirement that a veteran's additional disability was "directly" caused by the "actual provision" of medical care by VA employees. No. 2012-7075 (Fed. Cir. Jan. 31, 2013) (holding a veteran's injury was "caused" by medical treatment or hospital care he received from the VA when he was injured by a loose grab bar in the bathroom of the VA facility). As such, the RO should take this new precedent into consideration when readjudicating this claim. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of all medical treatment the Veteran has received at VA medical facilities, to include records from the VA Pugent Sound Health Care System available in the CAPRI computer system. Associate all VA treatment records with the claims file and make them available for review by the Board. All efforts to obtain VA treatment records should be fully documented, and a negative response must be provided if records are not available. 2. Obtain all records from the Social Security Administration, to include all awards of disability benefits and any underlying records used in reaching the determination. All efforts to obtain Social Security records should be fully documented, and a negative response must be provided if records are not available. 3. Then readjudicate the appeal. In so doing the RO should specifically consider the recent Federal Circuit decision Viegas v. Shinseki, No. 2012-7075 (Fed. Cir. Jan. 31, 2013) (if needed). If the claim is denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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 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. 2012). _________________________________________________ JOHN J. CROWLEY 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).