Citation Nr: 1327011 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 09-06 052 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 (West 2002) for right foot disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1956 to September 1959. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from an October 2003 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the benefit sought on appeal. The Veteran filed a Notice of Disagreement (NOD) in June 2004. The RO issued a Statement of the Case (SOC) in January 2009. In February 2009, the Veteran filed his Substantive Appeal. Thus, the Veteran perfected a timely appeal of this issue. The RO in Philadelphia, Pennsylvania, currently has jurisdiction over this claim. The Veteran was afforded a hearing with a Decision Review Officer (DRO) in February 2009. A copy of the hearing transcript has been associated with the claims file. In his Substantive Appeal, the Veteran requested a Board videoconference hearing. In an April 2013 letter, he was notified that his hearing had been scheduled for May 2013, but he failed to appear for the proceeding and has not provided an explanation for his absence or requested to reschedule the hearing. Accordingly, the Board considers that his hearing request is considered withdrawn. 38 C.F.R. § 20.704(d) (2012). The RO certified this appeal to the Board in April 2013. Subsequently, additional medical evidence was added to the record. However, the Veteran waived his right to have the RO initially consider this evidence in a statement from his representative dated in July 2013. 38 C.F.R. §§ 20.800, 20.1304 (2012). The Veteran's Virtual VA paperless claims file was also reviewed and considered in preparing this remand, along with the Veteran's paper claims file. 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 Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the claim can be properly adjudicated. Initially, the Veteran's most recent, pertinent outpatient treatment records from the VA Medical Center (VAMC) in Philadelphia, Pennsylvania, are dated since October 2010. Upon remand, all pertinent VA records since October 2010 must be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A(a)(1), (b)(1), (c)(1) (West 2002); Loving v. Nicholson, 19 Vet. App. 96, 101-03 (2005). Additionally, at his February 2009 DRO hearing and at his July 2012 VA examination, the Veteran stated that he has been on Social Security Administration (SSA) disability benefits for his right foot since 1995. The SSA decision and records considered by that agency in deciding the Veteran's claim are not currently in the claims file. While SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). Hence, when the VA is put on notice of the existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. See Murincsak; see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). Thus, the Board finds that the AMC should obtain and associate with the claims file a copy of SSA's determination on the Veteran's claim, as well as copies of all medical records underlying that determination, following the current procedures prescribed in 38 C.F.R. § 3.159(c) (2012) with respect to requesting records from Federal facilities. Finally, the current version of 38 U.S.C.A. § 1151 (applicable to claims, as here, received by VA on or after October 1, 1997) provides, in pertinent part, that a Veteran may be awarded compensation for additional disability, not the result of his willful misconduct, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by VA, either by a VA employee or in a VA facility, and the proximate cause of the disability was (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or (2) an event not reasonably foreseeable. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361 (2012). The Veteran contends that negligent surgical treatment received at the VAMC in Philadelphia, Pennsylvania, in June 1988 for right foot osteotomy and in March 2002 for a right foot bunionectomy, resulted in an additional disability. Here, there is documentation of current right foot disabilities. See VA outpatient treatment record dated in November 2009 diagnosing right foot strain; see VA examination dated in July 2012 diagnosing pes planus of the right foot; see VA medical questionnaire dated in November 2012 diagnosing hallux valgus and hallux rigidus of the right foot. However, this evidence does not allow the Board to determine whether the Veteran's current right foot and right knee problems meet the criteria for a "qualifying additional disability" under 38 U.S.C.A. § 1151. No medical opinion on this issue has been obtained. Additionally, the Board cannot determine whether there was medical carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or whether the consequences of the treatment were reasonably foreseeable. In this regard, the Veteran was afforded a VA examination and medical opinion in November 2009. Regarding the 2002 VA surgery, the November 2009 VA examiner determined that the Veteran's current right foot strain is "at least as likely as due to the second bunionectomy performed in March 2002." This does not meet the correct legal standard for deciding a claim under 38 U.S.C.A. § 1151, but does provide supporting evidence for the claim. Additionally, regarding the 1988 VA surgery, the VA examiner found that he could not form an opinion without resort to mere speculation. No rationale was provided. Concerning a medical opinion in which the VA medical professional cannot render an opinion as to etiology without resorting to mere speculation, the United States Court of Appeals for Veterans Claims (Court) determined that a VA examiner cannot use speculation "as a substitute for the full consideration of all pertinent and available medical facts to which a claimant is entitled." Jones v. Shinseki, 23 Vet. App. 382 (2010). Here, it is unclear whether the November 2009 VA examiner closely considered the Veteran's lay statements, his VA treatment records, and the medical literature reviewed in forming his medical opinion. The Veteran was afforded additional VA examinations in May 2010 and July 2012, but medical opinions were not provided. The Board is prohibited from relying on its own unsubstantiated medical judgment in the resolution of a claim. See Crowe v. Brown, 7 Vet. App. 238 (1995); Austin v. Brown, 6 Vet. App. 547 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board finds that a VA medical opinion is still necessary to decide the claim. Accordingly, the case is REMANDED for the following actions: 1. Obtain all pertinent VA outpatient treatment records from the Philadelphia, Pennsylvania, VAMC since October 2010 that have not been secured for inclusion in the record. Ensure that the Veteran has not been recently treated by any other local VAMCs. If no new records are associated with the claims file, a written determination should be included in the claims file. 2. The AMC should request from SSA a copy of its determination on the Veteran's claim for benefits, as well as copies of all medical records underlying its 1995 determination. In requesting these records, the AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. After obtaining the above records, obtain a VA medical opinion (an examination is not necessary) with respect to his claim for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for right knee and right foot disabilities. The physician should review the claims files in connection with the requested opinion. The physician should provide the following opinion(s): a. Is it at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran developed an additional disability in connection with the VA surgical treatment he received in June 1988 through the VAMC in Philadelphia, Pennsylvania, for his right foot osteotomy? b. Is it at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran developed an additional disability in connection with the VA surgical treatment he received in March 2002 through the VAMC in Philadelphia, Pennsylvania, for his right foot bunionectomy? c. If and only if the Veteran developed an additional disability in connection with the June 1988 VA surgical treatment, then is it at least as likely as not that the June 1988 VA hospital care or medical or surgical treatment resulted in the Veteran's additional disability? d. If and only if the Veteran developed an additional disability in connection with the March 2002 VA surgical treatment, then is it at least as likely as not that the March 2002 VA hospital care or medical or surgical treatment resulted in the Veteran's additional disability? e. If and only if the additional disability was a result of the June 1988 VA treatment, then is it at least as likely as not that this additional disability was reasonably foreseeable? f. If and only if the additional disability was a result of the March 2002 VA treatment, then is it at least as likely as not that this additional disability was reasonably foreseeable? g. If and only if the additional disability was a result of the June 1988 VA treatment, then is it at least as likely as not that this additional disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the June 1988 hospital care, medical or surgical treatment? h. If and only if the additional disability was a result of the March 2002 VA treatment, then is it at least as likely as not that this additional disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the March 2002 hospital care, medical or surgical treatment? A complete rationale should be expressed for all opinions provided. If the physician finds that it would be helpful or necessary to obtain a consult and/or examination from another physician in order to address items enumerated above, that should be accomplished. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 4. After the above actions have been completed, readjudicate the Veteran's claim. If the claim remains denied, issue to the Veteran and his representative a Supplemental Statement of the Case (SSOC). Afford them the appropriate period of time within which to respond thereto. 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 Court 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). _________________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).