Citation Nr: 1339847 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 09-09 959 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Entitlement to VA compensation, pursuant to 38 U.S.C.A. § 1151, for a disorder of the right hip and upper right femur. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from April 1961 to April 1964. This matter came to the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the RO. In July 2013, during the course of the appeal, the Veteran had a video conference with the Veterans Law Judge whose signature appears at the end of this decision. 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 The Veteran contends that as result of VA hospitalization/nursing home care from October 2004 to June 2005, he has additional disability his right hip and femur. The current record shows that during that time, he underwent surgery 3 times. Potentially relevant information has not been received. The appeal is therefore remanded for the following actions: 1. The RO/AMC will secure copies of the Veteran's informed consent forms for surgery on October 12, 2004 (total right hip replacement), November 4, 2004 (revision of his total right hip replacement), and November 15, 2004(underwent incision and drainage of an infection in his right hip). Associate the forms with the claims folder. Efforts to obtain such records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each federal department or agency or other entity from whom they are sought. 38 U.S.C.A. § 5103A(b) (West 2002 and Supp. 2013); 38 C.F.R. § 3.159(c)(2) (2013). 2. The RO/AMC will request that the Veteran provide the names of the Bronx, New York VA Medical Center (MC) employees who assisted him after he allegedly fell and fractured his right femur, during the evening hours of October 17, 2004, while hospitalized at the he slipped and fell on a wet floor, fracturing his right upper femur. The RO/AMC will then secure any witness statements from these individuals, AND ANY ACCIDENT REPORTS OR ANY OTHER DOCUMENTATION OR FOLLOW UP INVESTIGATION BY THE VAMC. 3. The RO/AMC will obtain the report of the October 28, 2004 surgery for the right hip at "Trident." The Veteran identify the name and address of the health care provider who performed surgery or the name and address of the facility where he had surgery on October 28, 2004. Then, the RO/AMC must request the records of that surgery DIRECTLY from the health care provider who performed such surgery or the facility or where the surgery was performed. Such records should include, but are not limited to, discharge summaries, consultation reports, records of informed consent, X-ray reports, laboratory studies, daily clinical records, doctor's notes, nurse's notes, and prescription records. A failure to respond or a negative reply to any request must be noted in writing and associated with the claims folder. If the records are held by an entity associated with the federal government, efforts to obtain such records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each federal department or agency or other entity from whom they are sought. 38 U.S.C.A. § 5103A(b) (West 2002 and Supp. 2013); 38 C.F.R. § 3.159(c)(2) (2013). If the requested records are held by an entity not associated with the federal government, and those records are unavailable, notify the Veteran and his representative in accordance with the provisions of 38 U.S.C.A. § 5103A(b) (West 2002 and Supp. 2013); 38 C.F.R. § 3.159(e) (2013). 4. The RO/AMC must undertake any other indicated development, including the conduct of any other appropriate medical inquiry. Then, the RO/AMC must readjudicate the issue of entitlement to VA compensation for the a disorder of the right hip and upper right femur, pursuant to 38 U.S.C.A. § 1151. In so doing, the RO/AMC must consider all relevant evidence, including that received after the January 2013 Supplemental Statement of the Case. The RO/AMC MUST ADDRESS the Veteran's three theories of the case: a) that he has additional disability, manifested by an infection of his right hip and femur, the result of a dental infection which had been aggravated by his October 12, 2004 total right hip replacement surgery; b) that he has additional disability, manifested by the residuals of a fractured is right femur, the result of an October 17, 2004 slip and fall on a wet floor while recuperating from his total right hip replacement, and; c) that he has additional disability, manifested by a chronic right hip infection, which had been aggravated by his claimed premature release from VA care in June 2005. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The Veteran need take no action unless he is notified to do so. However, he is advised that he has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (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. 2007). _________________________________________________ VITO A. CLEMENTI 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) (2013).