Citation Nr: 1750118	
Decision Date: 11/03/17    Archive Date: 11/13/17

DOCKET NO.  13-29 461	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUE

Entitlement to compensation under 38 U.S.C.A. § 1151 for a left leg disability claimed due to surgical and medical treatment, left total hip arthroplasty (THA), at the Huntington VA Medical Center (VAMC) in March and April 2008.


REPRESENTATION

Appellant represented by:	Jan Dils, Esq.


WITNESSES AT HEARING ON APPEAL

Veteran and spouse


ATTORNEY FOR THE BOARD

William Skowronski, Associate Counsel
INTRODUCTION

The appellant is a Veteran who served on active duty from June 1970 to July 1973.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Huntington, West Virginia Department of Veterans Affairs (VA) Regional Office (RO).  A December 2010 rating decision reconsidered and continued the denial.  In August 2014, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record.  In June 2015, the Board remanded the claim for additional development.  [The June 2015 Board decision also remanded an appeal seeking an increased rating for a psychiatric disability.  An interim (February 2017) rating decision granted the claim in full by assigning a 100 percent rating for major depressive disorder throughout (from the effective date of service connection), and that matter is no longer before the Board.]

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action on his part is required.


REMAND

The Board finds that further development of the record remains necessary for proper adjudication of the instant claim.  The June 2015 Board remand directed the AOJ to secure all records related to the Veteran's March 2008 THA, including all records of postsurgical care and home health treatment.  In a May 2016 opinion, a VA examiner noted he reviewed home health nursing records and orthopedic treatment records from April 2008.  Such records are not associated with the claims file.  In addition, VA prescription records show antibiotics and corticosteroids were prescribed between April 2008 and June 2008, but treatment records from this period (which would indicate why the medications were prescribed) also are not associated with the claims file.  Accordingly, pertinent (and perhaps critical) evidence in the matter at hand, constructively of record, remains outstanding.  Under Stegall v. West, 11 Vet. App. 268, 271 (1998), a remand to ensure compliance with the Board's directives is necessary.  
The case is REMANDED for the following:

1. The AOJ should arrange for exhaustive development to secure for the record complete clinical records of any (and all) treatment the Veteran received at or through the Huntington VAMC (including home health treatment from April 2008 to June 2008) related to his March 2008 hip surgery and records of all follow-up VA treatment from April 2008 to November 2008.  If any such records are unavailable, the reason must be explained for the record, and the Veteran should be so advised.

2. The AOJ should then arrange for any further development suggested by additional evidence received (e.g., a new VA opinion, if indicated), review the entire record and readjudicate the claim.  If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his attorney opportunity to respond, and return the case to the Board.

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 for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
GEORGE R. SENYK
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) (2017).