Citation Nr: 1508887 Decision Date: 03/02/15 Archive Date: 03/17/15 DOCKET NO. 13-00 270A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for bilateral above-the-knee amputations. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from May 1972 to December 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND The Veteran asserts that his bilateral above-the-knee amputations were necessitated because the providers who treated him at the Birmingham VA Medical Center (VAMC) in September-October 2009 and subsequently at the Augusta VAMC in October-November 2009 failed to reasonably care for his pressure ulcers, which became gangrenous. The RO denied the claim based on a determination that there is no evidence of carelessness, negligence, lack of proper skill, error in judgment or other fault on the part of the Veteran's VA medical providers. The question of whether the Veteran's VA medical providers used the degree of care that would be expected of a reasonable healthcare provider is a medical determination that is not within the Board's competence, absent a solid foundation on the record that is grounded in medical evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). As there is no medical opinion currently of record on this question, remand is required. In addition, the claims file appears to have incomplete VA treatment records addressing the period under appellate review. Specifically, legible records from Birmingham VAMC (September-October 2009) are present in Volumes 2-4 of the file, but the records from Augusta VAMC, the facility in which the amputations were actually performed in October and November 2009, are limited to a few unreadable CAPRI screens in Volume 2; the missing records are not in Virtual VA or in VBMS. In order to facilitate medical review of the care provided to the Veteran, and subsequent appellate review by the Board as appropriate, it is necessary that the AOJ obtain the relevant treatment records from Augusta VAMC and associate those records with the file. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain legible copies to the extent possible of the Veteran's treatment records from Augusta VAMC during the period October-November 2009 and associate those records with the claims file or with the electronic record in Virtual VA or VBMS. 2. Then, the AOJ should submit the file to a VA physician for review. Based on review of the file, the reviewing physician should state an opinion as to whether the Veteran's bilateral above-the-knee amputations in October and November 2009 represent an additional disability that was caused by medical treatment provided by VA, to include failure to properly treat pressure ulcers; and, if so, whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider. In determining whether there is "additional disability" the reviewer is advised that hospital care or medical treatment cannot cause the continuation or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused such continuance or natural progress. The reviewer should provide a clinical rationale for all opinions expressed. 3. After the development requested above and any additional development deemed necessary has been completed to the extent possible, the AOJ should again review the record. If the benefit sought on appeal remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and be given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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 2014). _________________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).