Citation Nr: 1330181 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 11-04 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to compensation benefits, pursuant to the provisions of 38 U.S.C.A. § 1151, for posttraumatic stress disorder (PTSD), as a result of treatment received at the El Paso, Texas, VA Medical Center (VAMC) on February 27, 2006. REPRESENTATION Appellant represented by: Mr. M.J.H, One Time Representative for Appellant WITNESSES AT HEARINGS ON APPEAL Appellant and her spouse ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The Veteran served on active duty from August 1975 to May 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). A hearing before a decision review officer at the RO was conducted in December 2009. The Veteran also testified at a hearing at the RO before the undersigned Veterans Law Judge (VLJ) in June 2011. Transcripts of the proceedings are 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 Under 38 U.S.C.A. § 1151, compensation is awarded for a Veteran's qualifying additional disability in the same manner as if such additional disability was service connected. A qualifying disability is one which is not the result of a Veteran's willful misconduct, and which was caused by hospital care, medical or surgical treatment or examination furnished her under any law administered by VA, and the proximate cause of the disability was (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the surgical treatment; or (b) an event not reasonably foreseeable. El Paso, Texas, VAMC records indicate that the Veteran was seen on February 2, 2006 due to an extended period of vaginal bleeding. On February 21, 2006, an ultrasound was performed and showed multiple fibroids in the uterus. The impression was multiple uterine fibroids and an enlarged uterus. There was a small amount of fluid in the cul-de-sac. There was a notation of concern that she may have early pregnancy or ectopic pregnancy because of fluid in the cul-de-sac or endometrial malignancy. An HCG of 3.8 was reported. The report stated that this may be indicative of early pregnancy. A February 22, 2006, addendum noted that the Veteran had an HCG of 5.8- weakly positive low, and would have the test redone. Following this appointment, the Veteran contends that she was referred to a private physician which informed her that she was not pregnant. VA treatment records noted that she was provided a fee basis consultation with R.N.S., M.D., on February 23, 2006. On that date, a private test noted an HCG of 2.85. Private treatment records from Dr. S on February 27, 2006, noted a diagnosis of fibroid uterus with menometrorrhagia not responding to conservative management or prior surgery. The Veteran returned to the El Paso, Texas VAMC for follow-up and clarification of previous testing on February 27, 2006. A February 27, 2006, HCG of 3.7 was noted. The Veteran stated that at this appointment she and her husband were taken into a private room and the physician began yelling at her and told her "you killed the baby with your diabetes." She also notes that she had previous bilateral fallopian tubal ligation surgery in June 1989, the operation report is of record, and she could not possibly be pregnant at that time. The Veteran contends that this maltreatment on February 27, 2006 by a VA physician has caused or aggravated her PTSD, and therefore, she is entitled to disability benefits pursuant to 38 U.S.C.A. § 1151. Both the Veteran and her husband indicate that they complained to a VA patient advocate in 2008 regarding the Veteran's maltreatment by the VA physician. T. at 6. July 2007, August 2007, August 2008, and September 2008 VA Patient Advocate Tracking System (PATS) notes of their complaints are already contained in the Veteran's claims file. The Veteran's representative essentially indicated at the June 2011 hearing that a tort claim was filed. See hearing transcript (T.) at 4. Information contained in the Veteran's Federal Tort Claims Act claim will be pertinent to this appeal, and therefore, these records should be requested from the VA Regional Counsel in Albuquerque, New Mexico. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also 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). The Veteran and her representative have pointed out multiple times that they believe that the Veteran's claims file is missing many pertinent records, including positive pregnancy tests done in February 2006. The Board notes that multiple VA and private HCG tests from February 2006 are of record, including one which is noted to be weakly positive. The Veteran and her representative are instructed to specifically list any other pertinent treatment records, to include dates of treatment and the treatment provider, that they believe are missing. The AMC/RO should attempt to obtain any relevant records specifically identified which are not duplicates of records in the claims file. In a July 2003 VA treatment record, it was noted the Veteran reported a history of counseling with a psychiatrist. The Veteran should be asked to identify the provider and to provide a release form so such records can be requested. The Veteran has also alleged that they filed a complaint against Dr. V.C. in 2006. Records from the Patient Advocate Tracking System dated from February 2006 to July 2007 should be requested. Accordingly, the case is REMANDED for the following action: 1. Contact the VA Regional Counsel in Albuquerque, New Mexico, and request that copies of any non-work-product documentation developed in association with the Veteran's Federal Tort Claims Act claim be forwarded for incorporation into the claims file. In particular, the request from the Regional Counsel a copy of the SF-95, any expert medical opinion obtained in the context of adjudicating the tort claim, and the decision letter stating whether or not the tort claim was granted. If any requested records are unavailable the Veteran should be notified of such. 2. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all health care providers who have treated her for psychiatric symptoms, to include the counseling she received by a psychiatrist prior to July 2003. After securing any necessary release, request any relevant records that are not duplicates of those contained in the claims file. In addition, ongoing VA mental health treatment records since August 2010 should be requested. If any requested records are not available, the Veteran should be notified of such. 3. Request that the El Paso VAMC provide copies of any Patient Advocate Tracking System records dated from February 2006 to July 2007. If the requested records are not available, the Veteran should be notified of such. 4. Ask the Veteran and her representative to specifically list any other pertinent treatment records, to include dates of treatment and the treatment provider, that they believe are missing from the record. After securing any necessary release, request any relevant records that are not duplicates of those contained in the claims file. If any requested records are not available, the Veteran should be notified of such. 5. After conducting any additional development deemed necessary in response to records received following the above development, readjudicate the claim. If the claim continues to be denied, send a supplemental statement of the case and give the Veteran and her representative time to respond. The appellant 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). _________________________________________________ K. A. BANFIELD 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).