Citation Nr: 1332027 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 11-20 568 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of cardiac catheterization at a VA medical facility on March 17, 1987 (claimed as amputation of right fifth toe, right calf ulcers, skin grafts, scars, leg pain, poor circulation and blood flow, and limitation of motion of the right leg and ankle). REPRESENTATION Appellant represented by: Andrew J. Waghorn, Attorney ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from December 1955 to December 1958 and from January 1959 to October 1959. This matter comes before the Board of Veterans' Appeals (Board) from an April 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. A review of the Veteran's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the Veteran's claim. In September 2013, the Veteran's attorney submitted additional pertinent evidence along with a waiver of RO review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran's claim was remanded by the Board in February 2013 in order to obtain additional VA medical records from the Veteran's March 17, 1987 VA surgery as well as additional records regarding the immediately following VA follow up surgery and treatment. The claim was also remanded for an opinion from a cardiac specialist to be based on a review of the Veteran's VA medical records contained in the Veteran's claims file. The agency of original jurisdiction (AOJ) was unable to obtain all the additional pertinent records relating to the VA March 17, 1987 VA surgery. A medical opinion was obtained from a cardiac specialist in March 2013. In September 2013 the Veteran's attorney submitted additional VA medical records. Although some were duplicates, some were not, including VA treatment records dated March 18, 1987 and March 25, 1987, which are pertinent to the Veteran's claims. The cardiac specialist must be given a chance to review these records and provide an addendum to his March 2013 opinion. An August 2008 VA Form 21-4138 contains a statement from the Veteran that he was in receipt of Social Security Administration (SSA) disability benefits. Copies of these records should be obtained and reviewed. The Court of Appeals for Veterans Claims has held that VA's duty to assist encompasses obtaining medical records that supported an SSA award of disability benefits as they may contain information relevant to VA claims. Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Request, directly from the SSA, complete copies of any determination on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. When the above action has been accomplished forward the Veteran's claims file to the cardiac specialist who provided the March 2013 medical opinion. If the March 2013 examiner is unavailable, send the Veteran's claims file to another cardiac specialist for review. The examiner is asked to review the medical evidence of record, in particular the medical evidence received subsequent to the March 2013 opinion. The examiner should provide an opinion as to the whether the Veteran has any current disability resulting from the March 17, 1987 VA medical treatment. The examiner is asked to specifically state whether the Veteran has had amputation of right fifth toe, right calf ulcers, skin grafts, scars, leg pain, poor circulation and blood flow, or limitation of motion of the right leg and ankle due to the March 17, 1987 VA medical treatment. The examiner is also requested to discuss the March and December 2003 opinions of Dr. Jesse Blumenthal. If any current disability can be related to the March 17, 1987 VA medical treatment the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that any such disability is due to carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of the March 17, 1987 VA medical treatment; or was an additional disability that was not reasonably foreseeable. 3. Finally, readjudicate the Veteran's claim. If the benefit sought on appeal is not granted, the RO should furnish the Veteran and his attorney with a supplemental statement of the case and they should be provided an opportunity to respond in accordance with applicable statutes and regulations. The case should be then 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 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). _________________________________________________ MICHAEL A. PAPPAS 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).