Citation Nr: 1326869 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 11-24 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for bilateral chondromalacia. 2. Entitlement to compensation benefits under 38 U.S.C. § 1151 for damage to the spleen allegedly incurred from surgery at a Department of Veterans Affairs (VA) facility. REPRESENTATION Appellant represented by: Julie L. Glover, Attorney ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1972 to September 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Regional Office (RO) that concluded new and material evidence had not been received to reopen a claim of service connection for bilateral chondromalacia of the patella and denied benefits under 38 U.S.C.A. § 1151 for damage to the spleen claimed to have resulted from surgery at a VA facility. [The June 2010 rating decision also denied the Veteran's claim for pension benefits. A September 2012 rating decision granted the claim, effective January 12, 2012. The Veteran has not disagreed with the effective date of the award, and his attorney likewise has not presented nny argument in the matter. Accordingly, such issue is not before the Board.] At his request the Veteran was scheduled for a videoconference hearing before the Board in June 2013. By letter that month, his attorney requested that the hearing be canceled. Accordingly, the Board finds the Veteran's request for a hearing to be withdrawn. The appeal is being REMANDED to the VARO. VA will notify the appellant if further action is required. REMAND The Veteran claims that he underwent hernia repair surgery at a Dallas, Texas VA hospital in 1982. He alleges that during the surgery an instrument was left inside his body and that a second VA surgical procedure to retrieve it damaged his spleen. The RO requested the Dallas VAMC to provide the records of the Veteran's treatment. The medical center replied that no "other treatment records before 1994 were found". Currently, there is no evidence in the record that VA provided the Veteran surgical treatment in 1982. As whether the alleged treatment actually took place is a threshold question in a Section 1151 claim, further development to resolve it is needed (while treatment records may have been destroyed, hospital administrative records may be able to confirm that the alleged treatment took place). There is no indication that administrative records were sought. If VA treatment is shown, development of alternate source evidence regarding whether such treatment resulted in additional disability may be necessary. The Veteran was seen in a VA outpatient treatment clinic in March 1998 for unrelated complaints. It was noted the Veteran was status post fundoplication, probably splenectomy. The assessments included status post splenectomy. The record shows the Veteran was awarded Social Security Administration (SSA) disability benefits. Records pertaining to the award have not been associated with the Veteran's VA record. When VA has notice of the existence of relevant SSA records, the duty to assist includes requesting such records from that agency. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Accordingly, the case is REMANDED for the following: 1. The RO should obtain from SSA copies of their decision awarding the Veteran disability benefits and the medical records considered in that determination. 2. The RO should arrange for exhaustive development for any (and all) administrative records from the Dallas VAMC that may establish whether or not Veteran underwent surgery to repair a hernia at that facility in 1982 (and of any follow-up to such procedure), to include whether he underwent a second surgical procedure soon thereafter that involved splenectomy. If no such records are found, the Veteran should be so advised, and further advised to submit any records he may have that would tend to corroborate that the alleged treatment took place, and that it resulted in splenectomy (as well as that there was fault on the part of the VA, or an unforeseen consequence that resulted in splenectomy. If the alleged hernia repair surgery is shown by VA records, the RO should arrange for any alternate source development to establish whether or not it resulted in additional disability, and whether or not there was VA fault causing such disability. The development should proceed to logical conclusion (i.e., if the development sought unearths sufficient evidence that a medical opinion becomes necessary, such opinion should be sought) 3. The RO should then review the record and readjudicate the claims on appeal. If either remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his attorney opportunity to respond. The case should then be returned to the Board, if in order, 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ GEORGE R. SENYK 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).