Citation Nr: 9913177 Decision Date: 05/13/99 Archive Date: 05/21/99 DOCKET NO. 97-13 388 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151 (West 1991 & Supp. 1998) for the residuals of an ileostomy. 2. Entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151 (West 1991 & Supp. 1998) for a hemipelvectomy. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Veteran ATTOREY FOR THE BOARD John J. Crowley, Counsel INTRODUCTION The veteran served on active duty from July to December 1961 and from July 1962 to July 1963. This matter is currently before the Board of Veterans' Appeals (Board) on appeal from a March 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 1998, the Board remanded the case to the RO for additional development. At that time, it was noted that the veteran's representative had raised the issue of non- service connected pension. However, in written argument prepared by the veteran's representative in May 1999, it was indicated that the veteran does not seek a VA pension. Consequently, this issue is not before the VA at this time. REMAND In October 1998, the Board remanded this case to the RO to allow the veteran to obtain medical records cited by him within a hearing held before a Member of the Board in July 1998. The veteran contends that an ileostomy performed at a VA Medical Center (VAMC) in October 1970 was unwarranted and has caused residual disability. In the January 1997 statement of the case, the RO noted that the actual treatment records from 1970 were not available. At a hearing held before the undersigned in July 1998, the veteran indicated that these records had been "retired" to a location in Pittsfield, Massachusetts. The RO has made an extensive effort to obtain these records. A review of the claims folder reveals that in October 1971, Jerome H. Ellis, an attorney working for the veteran at that time, requested (and apparently obtained) the medical records in question. In October 1998, the veteran had failed to submit any competent evidence that his current disabilities are the result of VA treatment. Accordingly, the Board made a preliminary determination that the veteran's claims were not well grounded under the Court's determination in Caluza v. Brown, 7 Vet. App. 498 (1995), Contreras v. Brown, 5 Vet. App. 492 (1993), and Espiritu v. Derwinski, 2 Vet. App. 492, 495-5 (1994). Nevertheless, the veteran was provided the opportunity to obtain the records cited under the Court's determination in Robinette v. Brown, 8 Vet. App. 69 (1995). Efforts by the veteran's representative to obtain the records from Mr. Ellis have failed. It does not appear that the veteran or his representatives have attempted to obtain the records in question from the Pittsfield, Massachusetts, location. The veteran's representative has recently submitted an April 1999 medical opinion from Craig N. Bash, M.D., a neuroradiologist, in support of veteran's claims. Based on a review of this medical opinion and the Court's determinations in both Caluza and Justus v. Principi, 3 Vet. App. 510, 513 (1992), the Board must now concluded that the veteran's claims are well grounded. The opinion of Dr. Bash provides a link between the veteran's current disabilities and his treatment at the VAMC. In this regard, it must be noted that it would have served the veteran's interests if the April 1999 medical opinion had been obtain prior to the Board's October 1998 remand of this case. 38 C.F.R. § 20.1304(c)(1998) states, in pertinent part: Any pertinent evidence submitted by the appellant or representative which is accepted by the Board under the provisions of this section, as well as any such evidence referred to the Board by the originating agency under § 19.37(b) of this chapter, must be referred to the agency of original jurisdiction for review and preparation of a Supplemental Statement of the Case unless this procedural right is waived by the appellant or representative or unless the Board determines that the benefit, or benefits, to which the evidence relates may be allowed on appeal without such referral. Such waiver must be in writing or, if a hearing on appeal is conducted, formally entered on the record orally at the time of the hearing. 38 C.F.R. § 19.37(a)(1998) states, in pertinent part: Evidence received by the agency of original jurisdiction prior to transfer of the records to the Board of Veterans' Appeals after an appeal has been initiated (including evidence received after certification has been completed) will be referred to the appropriate rating or authorization activity for review and disposition. If the Statement of the Case and any prior Supplemental Statements of the Case were prepared before the receipt of the additional evidence, a Supplemental Statement of the Case will be furnished to the appellant and his or her representative as provided in § 19.31 of this part, unless the additional evidence received duplicates evidence previously of record which was discussed in the Statement of the Case or a prior Supplemental Statement of the Case or the additional evidence is not relevant to the issue, or issues, on appeal. Consistent with the provisions of 38 C.F.R. §§ 20.1304(c) and 19.37(a), this evidence must be referred to the RO for review. VA has a duty to assist the veteran in developing facts pertinent to a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.103 and 3.159 (1998). That duty includes obtaining medical records and medical examinations where indicated by the facts and circumstances of the individual case. Littke v. Derwinski, 1 Vet. App. 90 (1990). "Full compliance with the [statutory duty to assist] also includes VA assistance in obtaining relevant records from private physicians when [the veteran] has provided concrete data as to time, place, and identity." Olson v. Principi, 480, 483 (1992). However, while the duty to assist is neither optional nor discretionary (See Littke v. Derwinski, 1 Vet.App. 90, 92 (1991)), the duty is not always a one-way street; nor is it a "blind alley." Olson, 3 Vet.App. at 483. "The VA's 'duty' is just what it states, a duty to assist, not a duty to prove a claim with the veteran only in a passive role." Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992) (citations omitted). The veteran has indicated that medical records from 1970 may be available in Pittsfield, Massachusetts. In light of the duty to assist, the Board finds the VA must attempt to obtain these records. The veteran should also provide additional information regarding this contention. Specifically, the veteran should provide the address of the facility and the basis for his belief that the records in question are located in Pittsfield, Massachusetts. In October 1971, the veteran requested "photostatic" copies of the medial records in question. At that time, economical photocopy devices were not in widespread use. Consequently, there is a possibility that the veteran's attorney was provided the original records from 1970 for his review and failed to returned the records received. This conclusion is consistent with the current state of the claims folder: Records not requested in October 1971, including records dated both before and after treatment in 1970, are currently associated with the veteran's claims folder. There is also a possibility that the treatment records ultimately could have been associated with litigation records pertaining to a claim filed against the United States. In light of the opinion of Dr. Bash, the Board believes that additional development, specifically an examination of the veteran and a medical opinion addressing the pertinent issues, is necessary prior to its review of the claims. The Board accordingly believes that the record is currently inadequate for the purpose of rendering an informed decision. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the veteran to develop the facts pertinent to the claims. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Accordingly, this case is REMANDED to the RO for the following developments: 1. The RO should attempt to locate records allegedly found in a Pittsfield, Massachusetts, medical storage facility. The veteran or his representatives, if possible, should provided the address of this facility. Any assistance the veteran's representatives can provide in locating these records should be accomplished. The veteran is also asked to indicate who informed him that records of his 1970 treatment at a VAMC would be located in Pittsfield, Massachusetts. 2. The RO should also seek to determine whether the treatment records from 1970 became associated with litigation records arising out of a claim against the United States. In this regard, the Board notes the record contains an October 11, 1971, letter from the claimant's then attorney referencing the attorney's representation of several veteran's in an "administrative claim" involving an allegation of lack of informed consent for urological surgery at the Houston VAMC. Appropriate action should be taken to determine whether the missing records are now stored with any litigation records concerning that "administrative claim." 3. Following (1) and (2), but not contingent upon whether additional records are obtained, the RO should arrange for an appropriately qualified VA physician to examine the veteran and determine the etiology of the hemipelvectomy and the residuals of the ileostomy based upon a complete review of the record. All studies or additional evaluations determined to be appropriate by the examiner should be performed. The claims folder or the pertinent medical records contained therein, including pertinent VA treatment records, examinations, including the May 1995 VA examination, and, most importantly, the April 1999 medical opinion of Dr. Bash, must be reviewed by the examiner in conjunction with this examination. Following the review of the record and the examination, the physician should provide explicit responses to the following questions: (a) Does the veteran currently have a residual disability, claimed as impotence, causally linked to the VA hospitalization, medical or surgical care for his ileostomy, that is not the certain or near certain result of his VA treatment, due to the natural progress of the underlying disability or due to some other cause? (b) Does the veteran currently have a residual disability causally linked to the VA hospitalization, medical or surgical care leading to his hemipelvectomy, that is not the certain or near certain result of his VA treatment, due to the natural progress of the underlying disability or due to some other cause? In this context, the opinion should address at least the following matters raised by the opinion of Dr. Bash: Was active osteomyelitis present at the time of the surgery and what is the significance of the presence or absence of active osteomyelitis in terms of whether the hemipelvectomy was indicated? If there were other modes or treatment available, is it ascertainable on this record without resort to speculation that the veteran would have ended up with less disability than he now experiences after the hemipelvectomy? (c) If the physician believes that there is additional a residual disability causally linked to the VA hospitalization, medical or surgical care for the veteran's ileostomy or leading to his hemipelvectomy disability, the examiner should identify the specific disability or disabilities caused by VA treatment. The examiner is advised that the question of whether there was negligence by VA providers leading to additional disability is not at issue. Additional evaluations, if determined by the examiner or the RO to be appropriate, should be performed to make this determination. 4. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. After the development requested above has been completed to the extent possible, the RO should adjudicate the veteran's claims for compensation benefits under the provisions of 38 U.S.C.A. § 1151, and the Court's holdings, prior to congressional action, as appropriate. If the benefit sought on appeal is not granted, the case should be returned to the Board for further appellate consideration, after compliance with appropriate appellate procedures, including issuance of a supplemental statement of the case. In this regard, the veteran and his representative should be afforded an appropriate period of time within which to respond thereto. By this action, the Board intimates no opinion, legal or factual, as to the ultimate disposition warranted as to this specific issue. While this case is in remand status, the veteran is free to submit additional evidence and argument to the RO on the questions at issue. See Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. Richard B. Frank Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1998).