Citation Nr: 1315149 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 10-49 414 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to payment of compensation benefits under 38 U.S.C.A. § 1151 for a hematoma resulting from July 2008 VA right inguinal hernia repair. 2. Entitlement to payment of compensation benefits for erectile dysfunction, to include as a residual of right inguinal hernia repair and under 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Marine Corps from October 1973 to June 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Roanoke, Virginia, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied entitlement to the benefits sought. The Board has recharacterized the issue with regard to erectile dysfunction, to include consideration of that disability as an additional disability under 38 U.S.C.A. § 1151. This more appropriately reflects the Veteran's allegations throughout the appeal. In December 2011, the Veteran requested scheduling of a hearing before a Veterans Law Judge, to be held at the RO. Such was scheduled for January 2012, and the Veteran was notified in December 2011 correspondence to his address of record. However, the Veteran failed to report for the hearing, without explanation or any request to reschedule. The hearing request is therefore considered withdrawn. 38 C.F.R. § 20.704(d). The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure review of the totality of the evidence. 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 alleges that in July 2008, he came to the VA medical center (VAMC) in Hampton, Virginia, for treatment of a right inguinal hernia. A surgical repair was performed by Dr. B on July 22, 2008. In August 2008, the Veteran was readmitted for complaints of pain in the groin; a hematoma was diagnosed and treated. The Veteran claims that this hematoma was caused by negligent, careless, or otherwise substandard care from Dr. B. Where a Veteran develops a qualifying additional disability as a result of VA treatment, such disability is treated as if it were service-connected, where the development is shown to have been not reasonably foreseeable, or the result of negligence, lack of care, or similar instance of fault on the part of VA. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. In order to fully and fairly consider the merits of the Veteran's claim, complete VA records from the time of the treatment alleged to be the cause of the disability are required. Review of the claims file reveals that several times records from July 2008 forward have been requested from VAMC Hampton, and have been produced. However, review of those records indicates that they may not be complete. Doctors in August 2008 report that following the July 2008 surgery, Dr. B saw the Veteran two additional times in follow-up and aspirated blood from the area of the surgery. On one occasion, the Veteran has himself reported that he saw Dr. B after surgery, and that he merely gave him additional pain medications; he later indicated in his notice of disagreement, however, that Dr. B did not treat him post-operatively, and "was told not to be in [the Veteran's] presence in any medical related situation." The Veteran goes on to list other doctors who cared for him post-operatively. The records associated with the claims file do not show any follow-up with Dr. B, either directly or in consultation with another doctor, nurse, or similar care provider. Records documenting exactly what treatment was provided by Dr. B are clearly relevant to the current claim. The duty to assist requires that VA make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Further, VA records are considered to be constructively of record and VA is charged with knowledge of their contents. Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Remand is therefore required to make efforts to obtain the apparently missing records, or to secure certification that such are unavailable. Moreover, a VA examination is required. The Veteran clearly underwent VA treatment in July 2008. He has competently reported that since that time he has experienced erectile dysfunction, and lacks a sex life of any kind. The cause of the erectile dysfunction is not clearly identified; as the possibility exists that it is related to the hernia surgery and complications, examination is necessary to obtain a medical opinion on the etiology of the current condition. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file complete VA records from the medical center in Hampton, Virginia, and all associated clinics, as well as any other VA facility identified by Veteran or in the record, for the period of June 2008 to August 2008. Progress notes, surgical notes, consultations, laboratory results, and any other category of VA record relevant to the care of the Veteran for the period in question must be requested. 2. After completion of the above, schedule the Veteran for a VA examination to evaluate allegations of hernia complications and erectile dysfunction; the claims file must be reviewed in conjunction with the examination. In light of the nature of the Veteran's allegations, examination must be accomplished at a VA facility other than VAMC Hampton. The examiner must report all current residuals and/or complications of the Veteran's July 2008 hernia repair surgery. Any residuals of the diagnosed hematoma must be identified, as well as the presence or absence of erectile dysfunction. Regarding erectile dysfunction, the examiner is asked to identify whether it is at least as likely as not related to the hernia repair in July 2008. For all identified conditions related to the July 2008 surgery, the examiner must opine as to whether it is at least as likely as not any such residual is related to negligence, lack of care, or similar instance of fault on the part of VA, or was not reasonably foreseeable as a result of the treatment and surgery. A full and complete explanation for all opinions expressed is required. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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. 2012). _________________________________________________ BETHANY L. BUCK 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).