Citation Nr: 1309775 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 07-28 306 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for right lower extremity peripheral vascular disease and neuropathy, status post right leg amputation. 2. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for left lower extremity peripheral vascular disease and neuropathy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to August 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The Veteran appealed, and in March 2010, the Board remanded the claims for additional development. In June 2011, the Board denied the claims. The appellant appealed to the U.S. Court of Appeals for Veterans Claims (Court). In April 2012, while his case was pending at the Court, the VA's Office of General Counsel and appellant's representative filed a Joint Motion requesting that the Court vacate the Board's June 2011 decision. That same month, the Court issued an Order vacating the June 2011 Board decision. In October 2009, the Veteran testified at a Board video conference hearing before the undersigned Acting Veterans Law Judge. A transcript of that hearing is of record. 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 Veteran asserts that he is entitled to compensation under the provisions of 38 U.S.C.A. § 1151 for bilateral lower extremity peripheral vascular disease and neuropathy, and status post right leg amputation. It is argued that the Veteran received improper anticoagulation treatment in association with peripheral vascular disease treatment as early as 1996. It is also argued that he was improperly taken off of Coumadin therapy in April 2001 in preparation for a colonoscopy, and that this caused occlusion of bilateral leg vein grafts, which ultimately led to the claimed conditions, to include an above-the-knee right leg amputation in April 2004. In March 2010, the Board remanded the claim, in part, to obtain an etiological opinion. In July 2010, the Appeals Management Center (AMC) obtained a medical opinion by Dr. D.H.S., a VA Chief of Section Vascular Surgery. Dr. D.H.S. concluded that the Veteran's left and right lower extremity disabilities were less likely to have been occurred or aggravated as a result of carelessness, negligence, lack of proper skill, error in judgment, or similarly instance of fault on the VA's part in furnishing treatment from April 2001 to April 2004, and that they are more likely related to the natural history of his disease. A review of the Joint Motion shows that it was agreed that the July 2010 opinion is not in compliance with the Board's March 2010 remand instructions. Specifically, it was agreed that: Although the examiner opined that Appellant's disability was the result of the natural progression of his disease, the examiner failed to provide an opinion as to whether VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress of Appellant's disease. Given the foregoing, a remand is required for a supplemental opinion by Dr. D.H.S., or, if Dr. D.H.S. is no longer available, for an opinion by an appropriate expert, which fully addresses the issues as set forth in the Board's March 2010 remand. As a final matter, the Board notes that since Dr. D.H.S. issued his July 2010 opinion, a statement has been received from Dr. D.J.H., who concludes that it is at least as likely as not that the care by the Iowa City VAMC between April 21, 2004 and April 24, 2004 "contributed to and/or resulted in his right above the knee amputation on April 24, 2004." Any opinion obtained should include a discussion of Dr. D.J.H.'s April 2012 statement. Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's claims file to Dr. D.H.S. for review. The claims folder and a copy of this REMAND should be reviewed by Dr. D.H.S., and he must annotate his opinion to show that the claims file was in fact made available for review in conjunction with the opinion. a) Dr. D.H.S. should be requested to discuss Dr. D.J.H's April 2012 statement, and to state whether any change is warranted in his July 2010 opinion. b) Dr. D.H.S. should further be requested to provide an opinion as to whether VA proximately caused the continuance or natural progress of the Veteran's condition by failing to timely diagnose and/or properly treat the disease or injury. The complete rationale for all opinions expressed should be set forth in the examination report. 2. If Dr. D.H.S. is not available, or if otherwise appropriate, send the Veteran's claims file for review by an appropriate specialist for an opinion as to whether any additional right or left lower extremity disabilities were either incurred or aggravated as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing treatment from April 2001 to April 2004. If the physician finds that any additional disability was a result of continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished, opinions should be provided as to whether VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. The complete rationale for all opinions expressed should be set forth in the examination report. The opinion should include a discussion of Dr. D.J.H's April 2012 statement. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with appropriate consideration of all the evidence of record. If any of the benefits sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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. 2012). _________________________________________________ T. L. DOUGLAS Acting 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).