judge_norm: MARK D HINDIN

text:
Citation Nr: 1415000
Decision Date: 04/07/14    Archive Date: 04/15/14

DOCKET NO.  10-39 509	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUES

1.  Entitlement to service connection for lumbar spine injury (back disability).

2. Entitlement to an initial rating in excess of 10 percent for right Achilles tendonitis.

3.  Entitlement to an initial rating in excess of 10 percent for left Achilles tendonitis.

4.  Entitlement to total disability based on individual unemployability (TDIU).

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESSES AT HEARING ON APPEAL

Veteran and his friend

ATTORNEY FOR THE BOARD

A.P. Armstrong, Associate Counsel

INTRODUCTION

The Veteran served on active duty from September 1989 to September 1993.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  The Veteran and his friend testified in a hearing at the RO in December 2010.  A transcript of that hearing was associated with the claims file and reviewed prior to this decision.

Here, the RO issued a rating decision denying the Veteran's claim of service connection for a back disability in April 2007.  The Veteran was notified of his appellate rights but did not appeal his claim and no new and material evidence was received within one year from the issuance of that decision.  Ordinarily, the April 2007 rating decision would have become final.  See 38 U.S.C.A. � 7105(c); 38 C.F.R. � 3.104.

Since the last final denial of service connection for a back disability, the Veteran provided copies of his service treatment and personnel records.  These records are official service department records that existed at the time of the prior denial and are relevant to the claim.  Therefore, the original claim is reconsidered without regard to the prior denial.  See 38 C.F.R. � 3.156(c)(1)-(2) (2013).

The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

FINDINGS OF FACT

The Veteran has marked limitation of motion in his left and right ankles, but has no more than a moderately severe disability.

CONCLUSIONS OF LAW

1.  The criteria for a 20 percent rating, but not higher, for right Achilles tendonitis have been met.  38 U.S.C.A. �� 1155, 5107 (West 2002); 38 C.F.R. �� 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5271 (2013).

2.  The criteria for a 20 percent rating, but not higher, for left Achilles tendonitis have been met.  38 U.S.C.A. �� 1155, 5107; 38 C.F.R. �� 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5271.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim.  See 38 U.S.C.A. �� 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a) (2013).

Additional VCAA notice is not required with regard to the appeal of an initial rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007).

VA's duty to assist the Veteran in the development of claims includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary.  38 C.F.R. � 3.159.

All pertinent, identified medical records have been obtained and considered.  The Veteran was provided examinations for his ankles in June 2009 and September 2011.  There is no evidence of a change in the disabilities since those examinations.  The examinations addressed the Veteran's reports, medical history, and the proper rating criteria, and are thus adequate.  There is no available, pertinent outstanding evidence.

As VA satisfied its duties to notify and assist the Veteran, VA has no further duties under the VCAA.  See 38 U.S.C.A. �� 5103, 5103A; 38 C.F.R. �3.159.

Rating Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  38 U.S.C.A. � 1155; 38 C.F.R. � 4.1.

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. � 4.7.  All reasonable doubt as to the degree of disability will be resolved in favor of the claimant.  38 C.F.R. � 4.3.

In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered.  Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal.  Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999).
The Veteran's left and right Achilles tendonitis have been rated under 38 C.F.R. � 4.71a, Diagnostic Code (DC) 5271 for disabilities that limit the range of motion of the ankle.  A disability with moderate limitation of motion of the ankle merits a 10 percent disability rating, while marked limitation of motion warrants a 20 percent disability rating.  38 C.F.R. � 4.71, DC 5271.

For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. �� 4.40, 4.45, pertaining to functional impairment.  VA should obtain examinations in which the examiner determined if the disability was manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups and whether these symptoms affected range of motion.  DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. � 4.59.

The Veteran's left and right Achilles tendonitis (ankle disabilities) merit a rating of 20 percent disability for marked limitation of motion, but not higher.  See 38 C.F.R. � 4.71, DC 5271.

The Veteran has pain and stiffness in his ankles.  See VA Examinations, RO Hearing December 2010.  The VA examiner in June 2009 noted a severe condition with deformity, giving way, pain, stiffness, and weakness in the left ankle and a moderate condition with pain, stiffness, and weakness in the right ankle.  The Veteran was unable to stand for more than a few minutes and had an unstable gait.  See VA Examination June 2009.  He has to use a cane.  See VA Examinations June 2009, September 2011.

The June 2009 examiner measured left plantar dorsiflexion as 0 to 10 degrees with pain, plantar flexion as 0 to 20 degrees with pain and right plantar dorsiflexion as 0 to 15 degrees with pain, plantar flexion as 0 to 25 degrees with pain.  The September 2011 VA examiner recorded less limitation of motion and observed pain only in the left ankle.  Giving the benefit of the doubt to the Veteran, the June 2009 recordings will be used to determine the level of disability.  These recordings show 50 percent limited motion in the left ankle, 25 percent limited dorsiflexion and 44 percent limited plantar flexion in the right ankle.  This level of limitation of motion along with the Veteran's reports of instability and need for assistive devices to walk create a marked disability, which merits a 20 percent rating.  See 38 C.F.R. � 4.71a, DC 5271.  Because this is the maximum rating for limitation of motion, 38 C.F.R. �� 4.40, 4.45; are not for application.  Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997).

Twenty percent disability is the highest rating allowed under Diagnostic Code 5271.  In accordance with Schafrath, the Board has considered all potentially applicable diagnostic codes to determine if the Veteran's disability could receive a higher rating under another code.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Diagnostic Code 5270 allows for disability ratings in excess of 20 percent for ankle disabilities; however, the code requires evidence of ankylosis.  38 C.F.R. � 4.71a, DC 5270.  The Veteran does not have ankylosis in his left or right ankle.  See VA Examination June 2009, September 2011.  As such, the Veteran could not receive a higher disability rating under rating codes contemplating such.

The provisions of 38 C.F.R. � 4.71a, Diagnostic Code 5284, provide rating for residuals of foot injuries.  That code provides a 20 percent rating for moderately severe disability; a 30 percent rating for severe disability; and a 40 percent rating for actual loss of use of the foot.  The VA examination showed normal strength and testing was negative for laxity.  It was opined that he did not have loss of use such that he would be equally well served by amputation at site of election.  These latter findings show he does not have loss of use of the foot as defined in 38 C.F.R. � 4.63 (2013).  The significant ranges of motion, normal strength and absence of laxity weigh against a finding that there is a severe foot disability as would be required for a higher rating under Diagnostic Code 5284.  Although the 2009 examiner described a severe disability on the right, that examiner considered symptoms subsequently attributed to multiple sclerosis as opposed to the service connected ankle disability.

The Veteran does have an abnormal gait documented in VA treatment records, but the 2011 examiner attributed this to multiple sclerosis, as shown by the finding that he uses a cane and walker for that disability rather than the disabilities of his ankles.  Similarly VA treatment records list the altered gait with multiple sclerosis in the Veteran's problem list.

The Board has also considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. � 3.321(b)(1).  However, this case does not present such an exceptional or unusual disability picture that it would be impracticable to apply the schedular standards, and referral is unnecessary.  See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).  Rather, the manifestations of the Veteran's ankle disabilities are fully contemplated by the schedular rating criteria.  Specifically, the rating criteria address limitation of motion and case law addresses functional loss from pain, weakness, stiffness.  The Veteran has not presented symptoms outside the rating criteria.  Accordingly, referral for consideration of an extra-schedular rating is not necessary.  See Thun, 22 Vet. App. at 115-16.

Based on the evidence and giving the Veteran the benefit of the doubt as to the level of disability, his left and right Achilles tendonitis merit a 20 percent rating, but not higher.  See 38 C.F.R. �� 4.3, 4.71, DC 5271.

ORDER

An initial rating of 20 percent, for right Achilles tendonitis is granted, since the effective date of service connection.

An initial rating of 20 percent for left Achilles tendonitis is granted, since the effective date of service connection.

REMAND

At the 2009 VA examination the examiner provided a negative opinion as to the relationship between current back disabilities and low back symptoms noted in service.  The opinion was based in part on the absence of "objective evidence" of back disability between 1989 and years after service.  The examination report; however notes the Veteran's report of back pain continuing after an in-service injury and becoming progressively worse.  VA cannot accept a medical opinion that does not consider a veteran's competent and credible report of symptoms.  Dalton v. Nicholson, 21 Vet. App. 23 (2007)

The Veteran's claims for an increased rating for left and right Achilles tendonitis include an inferred claim for TDIU.  See Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (Fed. Cir. 2009); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  Although there is evidence in VA treatment from December 2008 that the Veteran is not working, it is unclear whether he is unemployable due to his service-connected disabilities for VA purposes.  Therefore, all appropriate notice and assistance as to the TDIU claim should be provided, and this issue should be adjudicated.

Accordingly, the case is REMANDED for the following action:

1.  Send a notice letter to the Veteran laying out the specific requirements for proving a claim for TDIU and allow him time to respond.  Ask him to complete a formal application for TDIU.

2.  Obtain a medical opinion as to whether the Veteran's current back disability is related to a disease or injury in service, to include documented back complaints in service.

In providing this opinion, the examiner should acknowledged the Veteran's reports of ongoing back symptoms beginning with in-service injury and consider the remainder of the evidence in the claims file.

The examiner should also provide an opinion as to whether the current back disability was caused or aggravated by the service connected ankle disabilities, including associated instability.

The examiner should provide reasons for the opinions; including an explanation as to why the service connected ankle disabilities did, or did not cause or aggravate the back disability.

3.  After completing the above, schedule the Veteran for a VA examination to determine whether service connected disabilities render him unemployable.  The examiner should review the claims file.  All necessary tests and procedures should be conducted.  The examiner should answer the questions:

a. What are the functional impairments of the Veteran's service-connected disabilities?

b. What type of work is the Veteran capable of completing when considering his service-connected disabilities?

c. Would the answers change if the current low back disability was considered service connected?

The examiner should provide reasons for these opinions.  Consideration should be given to the Veteran's level of education, training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities.  If the examiner cannot respond without resorting to speculation, the examiner should explain why a response would be speculative.

3. If any benefit sought on appeal remains denied, issue a supplemental statement of the case.  Then, return the case to the Board, 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. 2013).

______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: THOMAS J DANNAHER

disposition: remanded

text:
Citation Nr: 1416000
Decision Date: 04/10/14    Archive Date: 04/24/14

DOCKET NO.  13-15 668	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania

THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, claimed as chronic depression.

REPRESENTATION

Appellant represented by:	West Virginia Division of Veterans Affairs

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

C. D. Simpson, Counsel

INTRODUCTION

The Veteran served on active duty from January 1978 to January 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.

In May 2013, the Veteran changed his representative to the West Virginia Division of Veterans Affairs.

The Veteran had a November 18, 2013 videoconference hearing before the undersigned.  The hearing transcript is of record.

Review of the electronic claims folder (efolder) found within the Virtual VA paperless claims processing systems includes the hearing transcript.  No other pertinent documents that are not already associated with the physical claims folder are of record.  Review of the Veterans Benefit Management System (efolder) does not include documents pertinent to the issue on appeal.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.

REMAND

The August 2011 Formal Finding of Unavailability did not include a search for the Veteran's personnel records.  Although the Veteran submitted copies of his personnel records, additional search efforts are necessary to ensure that all available personnel records are associated with the record.

The Veteran reports having applied for Social Security Administration (SSA) disability benefits and receiving treatment at the Pittsburgh VAMC.  These records need to be obtained as well.

In view of the stark discrepancy between the January 2013 VA psychiatric examination and the other clinical evidence of record regarding the existence and/or diagnosis of psychiatric disability, another VA psychiatric examination should be accomplished.  Review of the private medical records show that he has been diagnosed with major depressive disorder, anxiety disorder, and bipolar disorder.  The January 2013 VA examiner determined that the Veteran did not currently have major depressive disorder.  Another examination and medical opinion is needed to reconcile the conflicting medical evidence.

Accordingly, the case is REMANDED for the following action:

1. Contact the National Personnel Records Center (NPRC) or appropriate custodian for the Veteran's personnel records.  Document all correspondence and make as many requests as necessary.  If any records cannot be obtained, create a formal finding of unavailability with notice to the Veteran and his representative.

2. Contact the Social Security Administration for any pertinent records concerning the Veteran. Document all correspondence and make as many requests as necessary.  If any records cannot be obtained, notify the Veteran and his representative.

3.  Contact the Pittsburgh VAMC or any other VAMC that has treated the Veteran for psychiatric disability to obtain his VA treatment records.

4.  After associating all of the records generated above with the claims folder or determining they are unavailable, the Veteran should be afforded an examination by a mental health specialist who has not previously examined him.  The claims file, including any pertinent documents within the Virtual VA/ VBMS efolders, must be made available to and be reviewed by the examiner in conjunction with the examination.

The examiner must review the various psychiatric evaluations beginning in December 2009 showing that the Veteran has DSM-IV Axis I non-substance abuse diagnoses of major depressive disorder, anxiety disorder, and bipolar disorder, among others.  The results of the January 2013 VA examination should also be reviewed.
Following mental status interview and review of the evidence, the examiner should indicate whether the Veteran currently has an acquired psychiatric disability.

For any psychiatric disability exhibited on the mental status interview or elsewhere in the record (for evaluation purposes, the examiner should consider any psychiatric diagnosis manifesting since the December 2009 claim as a current disability, even if it subsequently resolves), the examiner should indicate whether it is as likely as not (50 percent probability or greater) that it had its clinical onset in service or is otherwise related to active duty.

The examiner must provide a supporting rationale for all opinions.  If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion.  (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.)

5.  Following the completion of the requested actions and any additional development deemed necessary, the RO should then re-adjudicate the Veteran's claim.  If the benefits on appeal remain denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded an opportunity to respond.  Thereafter, the case should be returned to the Board, if in order.

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 Supp. 2013).

_________________________________________________
THOMAS J. DANNAHER
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).


judge_norm: K A BANFIELD

disposition: denied

benefit: education

text:
Citation Nr: 1417000
Decision Date: 04/16/14    Archive Date: 04/24/14

DOCKET NO.  11-15 051A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York

THE ISSUE
Entitlement to an extension of the delimiting date for educational assistance benefits under Chapter 30, Title 38, United States Code (Montgomery GI Bill) beyond the delimiting date of September 1, 2010.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESSES AT HEARING ON APPEAL

The Veteran, his mother and Mr. WG

ATTORNEY FOR THE BOARD

J. Nilon, Counsel
INTRODUCTION

The Veteran served on active duty from June 1982 to August 2000.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2009 administrative decision by the Department of Veterans Affairs (VA) Regional Processing Center (RPC) in Buffalo, New York that denied the Veteran's request for an extension of his Montgomery GI Bill (MGIB) education benefits past his delimiting date of September 1, 2010.

In April 2012 the Veteran and supporting witnesses testified before the undersigned Veterans Law Judge by videoconference from the VA Medical Center in Lebanon, Pennsylvania.  A transcript of the hearing is of record.

FINDINGS OF FACT

1.  The Veteran was honorably discharged from service in August 2000 after completing more than three years of active service.

2.   The Veteran submitted a timely request for extension of eligibility for educational assistance under 38 U.S.C.A. Chapter 30 prior to his delimiting date of September 1, 2010.

3.  The Veteran did not have a physical or mental disability that prevented him from completing his course of training during his 10-year period of eligibility.

CONCLUSION OF LAW

The criteria for an extension of the delimiting date for receiving Chapter 30 educational benefits beyond September 1, 2010, are not met.  38 U.S.C.A. � 3031 (West 2002 & Supp. 2013); 38 C.F.R. �� 21.1033, 21.7050, 21.7051 (2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

Before addressing the merits of the claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations under the Veterans Claims Assistance Act (VCAA) have been satisfied.  See 38 U.S.C.A. �� 5103, 5103A (West 2002); 38 C.F.R. � 3.159 (2013).

The United States Court of Appeals for Veterans Claims (Court) has held that the duties to notify and assist under the VCAA are relevant to Chapter 51 of Title 38 of the United States Code but do not apply in educational benefits situations, which are governed by Chapter 30 of Title 38.  See Barger v. Principi, 16 Vet. App. 132, 138 (2002); see also Lueras v. Principi, 18 Vet. App. 435 (2004) and Sims v. Nicholson, 19 Vet. App. 453 (2006).

Nonetheless, the Board points out that the Veteran was provided during the course of the appeal with a copy of the decision denying the benefit claimed.  A Statement of the Case (SOC) in April 2011 responded to the arguments and assertions voiced in the Veteran's Notice of Disagreement, identified the evidence considered, and advised the Veteran of the reasons why the claim remained denied.

The Veteran has been afforded a hearing before the Board, at which he and two supporting witnesses presented testimony in support of his claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. � 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked.  Here, the VLJ identified the issue to the Veteran, who testified as to the reasons why he had been unable to complete his course of training prior to the expiration of his 10-year eligibility period as defined by his delimiting date.  The Veteran has not asserted that VA failed to comply with 38 C.F.R. � 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.   The hearing focused on the elements necessary to substantiate the claim, and the Veteran provided testimony relevant to those elements.  As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time.

The Veteran has not asserted, and the file does not show, that there are any entities having additional evidence that should be pursued prior to appellate review.  The Board finds that under the circumstances the RO has satisfied any extant duties to notify and assist the Veteran, and that adjudication of the appeal at this point presents no risk of prejudice to the Veteran.  See e.g. Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

Therefore, as all relevant evidence has been received, the Board may proceed with adjudication of the claim.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Applicable Legal Principles

Generally, an individual may be entitled to educational assistance under Chapter 30 if he or she first entered onto active duty as a member of the Armed Forces after June 30, 1985 continued on active duty without a break in service for three years thereafter.  38 U.S.C.A. � 3011(a)(1)(B) (West 2002 & Supp. 2013); 38 C.F.R. � 21.7042 (2013).

Most individuals are entitled to 36 months of assistance.  38 C.F.R. � 21.7072(a).

Except under specified limited circumstances, VA will not provide basic educational assistance to a veteran or servicemember beyond 10 years of the date of the veteran's last discharge or release from a period of active duty of 90 days or more
of continuous service.  38 U.S.C.A. � 3031 (West 2002 & Supp. 2013); 38 C.F.R. � 21.7050(a).

The time period for filing a claim for an extended period of eligibility for education benefits is one year from the date when the eligible individual's original period of eligibility ended; or, one year from the date on which the eligible individual's physical or mental disability no longer prevented him or her from beginning or resuming a chosen program of education.  38 C.F.R. � 21.1033(c).

VA shall grant an extension of the applicable delimiting period, provided: (1) the veteran applies for an extension with the time specified in 38 C.F.R. � 21.1033(c) as noted above; and, (2) the veteran was prevented from initiating or completing the chosen program of education within the otherwise applicable eligibility period because of a mental or physical disability that did not result from the veteran's willful misconduct.  It must be clearly established by medical evidence that such a program was medically infeasible.  38 U.S.C.A. � 3031 (West 2002 & Supp. 2013); 38 C.F.R. � 21.7051(a).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. � 5107; 38 C.F.R. � 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Evidence and Analysis

The Veteran is shown to have served on active duty from June 1982 to August 2000.  He accordingly meets the threshold requirement under 38 C.F.R. � 21.7042 for eligibility to participate in the MGIB.  His delimiting date is shown to be September 1, 2010, ten years after discharge from service.  38 C.F.R. � 21.7050.

The file does not show, and the Veteran has not asserted, that he had any periods of qualifying active duty after August 2000 that might extend his delimiting date.

A VA eligibility certificate dated in April 2009 shows that the Veteran had 34 months and 16 days of educational benefits remaining, but that all benefits had to be used prior to September 1, 2010.

The Veteran submitted the instant request for extension of delimiting date in March 2009, which is within his 10-year eligibility period for benefits.  His request for extension is accordingly timely under 38 C.F.R. � 21.1033(c).  Further, the first element of 38 C.F.R. � 20.7051(a) is met.  Therefore, resolution of the appeal hinges on whether the veteran was prevented from initiating or completing the chosen program of education because of a mental or physical disability.  38 C.F.R. � 21.7051(a)(2).

The file contains a June 2007 Report of Change in Student Status (VA Form
21-1999b) showing the Veteran discontinued his course of instruction at McCann School of Business Technology (McCann) in May 2007 for "personal reasons."

In his request for extension of delimiting date, the Veteran has asserted in
his correspondence to VA and his testimony before the Board that he had to discontinue his course of training at McCann after using only 11/2 months of his MGIB benefits because he had to care for his daughter, who had just given birth to a premature baby.  The baby required several weeks of hospital treatment, and after the baby was discharged from the hospital there was a danger that the baby would be placed in a foster home; to prevent this, the baby was placed in the custody of the Veteran's mother.  Because the Veteran's mother was still working, the Veteran did not resume his college courses but rather devoted himself to helping his mother care for the baby.  The Veteran now requests extension of the eligibility period so that he can use the remaining 341/2 months of MGIB education benefits that that will otherwise be lost.

The Veteran's daughter, Ms. BB, submitted a letter to VA in March 2009 affirming that the Veteran had been enrolled at McCann when she had her baby in May 2007, but he discontinued his college studies to devote himself full-time to caring for her and for the baby.  She credited the Veteran with essentially saving her life.

The Veteran's mother, Ms. CB, submitted a letter to VA in March 2009 stating that she was granted custody of the Veteran's baby grandchild in October 2007, but that she would have been unable to afford the time and expense to care for the child had it not been for the continuing contribution of the Veteran.  She reiterated this account in her testimony before the Board, and added that she continues to be the primary caregiver for the Veteran's daughter.

Mr. WG testified before the Board that the Veteran assists his mother in caring for his daughter.  This is essential because the Veteran's mother is caring not only for her granddaughter (the Veteran's daughter) but also for her own elderly mother.

Review of the evidence above demonstrates the Veteran did request an extension of the delimiting date in a timely manner.  However, he did not terminate his course of instruction in 2007 due to his own mental or physical disability.  The regulation does not imply that the delimiting date may be extended due to the mental or physical disability of a family member, and careful reading of the underlying statute shows that extension of eligibility may be considered for "an individual eligible for educational assistance" who is prevented from completing the chosen program of education because "such individual" had a mental or physical disability; see 38 U.S.C.A. � 3031(d).  Thus, the Board can find no basis on which to allow the present Veteran an extension of delimiting date based on his family exigencies, even though they were undoubtedly very real.

The Board has also carefully reviewed the provisions of 38 C.F.R. � 21.1750, which details the specific circumstances in which the 10-year limitation does not apply, but none of those circumstances apply in this case.

The Veteran has raised equitable arguments that he paid $1,200.00 into the
MGIB during service and it is unfair to deprive him of the unused 341/2 months
of educational support.  He further reports that he lives in an area of high unemployment and thus needs the additional training to improve his situation in life, and continued VA educational benefits are essential for getting such training.  While the Board is sympathetic toward the Veteran, the Board also observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress."  Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992).  Whereas the evidence in this case demonstrates that the Veteran was not prevented from completing his course of instruction within the period of eligibility due to his own mental or physical disability, his request for extension of the delimiting date must be denied.

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran's claim, and that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. � 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. 49, 55-56.

ORDER

The claim for an extension of the delimiting date for educational assistance benefits under Chapter 30, Title 38, United States Code (Montgomery GI Bill) beyond the delimiting date of September 1, 2010, is denied.

____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: STEVEN D REISS

disposition: dismissed

text:
Citation Nr: 1418000
Decision Date: 04/22/14    Archive Date: 05/02/14

DOCKET NO.  07-29 308	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia

THE ISSUES

1.  Entitlement to a rating in excess of 10 percent for the orthopedic residuals of a left wrist sprain.

2.  Entitlement to a compensable rating for left ulnar neuropathy.

REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, Inc.

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Jarrette A. Marley, Associate Counsel

INTRODUCTION

The Veteran served on active duty from September 1983 to April 1991.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision by the Atlanta, Georgia Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified at a Central Office hearing before the undersigned Veterans Law Judge in September 2009.

By way of background, in an August 2005 rating decision, the RO recharacterized the Veteran's service-connected residuals of a left wrist sprain as encompassing left elbow neuropathy, but maintained her left wrist disability rating as 10 percent.  In August 2005 correspondence, the Veteran disagreed with the RO's decision not to award her a separate compensable disability rating for her left ulnar neuropathy, giving rise to the current appeal.  In October 2011 and November 2012, the Board remanded the Veteran's claim for a compensable rating for left ulnar neuropathy for further development.

As last mentioned in the Board's October 2011 Board decision, at the September 2009 hearing, the Veteran raised claims for service connection for a psychiatric disorder and for alopecia.  These issues remain undeveloped and uncertified for appellate review, and are again (for the THIRD TIME) referred to the RO for appropriate action.

The issue of a compensable rating for left ulnar neuropathy is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.

FINDING OF FACT

On September 1, 2009, at Central Office hearing and prior to the promulgation of a decision in the appeal, the Veteran withdrew her appeal of the issue of entitlement to a rating in excess of 10 percent for the orthopedic residuals of a left wrist sprain.

CONCLUSION OF LAW

The criteria for withdrawal of an appeal of the issue of entitlement to rating in excess of 10 percent for the orthopedic residuals of a left wrist sprain have been met.  38 U.S.C.A. � 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. � 20.204 (2013).

REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. � 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. � 20.204 (2013).  Withdrawal may be made by the appellant or by his or her authorized representative.  Id.

In this case, in the December 2009 Board decision, it was noted that at the September 2009 Central Office hearing, the Veteran withdrew her appeal of the issue of entitlement to a rating in excess of 10 percent for the orthopedic residuals of a left wrist sprain, and informally dismissed the Veteran's appeal on that issue.  Nonetheless, the Veteran has withdrawn her appeal of the issue of entitlement to a rating in excess of 10 percent for the orthopedic residuals of a left wrist sprain and, hence, there remain no allegations of errors of fact or law for appellate consideration as to that issue.  Accordingly, the Board does not have jurisdiction to review the appeal of that issue, and it is formally dismissed.

ORDER

The appeal of the issue of entitlement to a rating in excess of 10 percent for the orthopedic residuals of a left wrist sprain is dismissed.

REMAND

Regarding the claim for a compensable rating for left ulnar neuropathy, in a (most recent) February 2013 supplemental statement of the case (SSOC), it was stated that the RO "has not rendered a decision on entitlement to service connection for left ulnar neuropathy/left elbow neuropathy.  Without assignment of service connection, there can be no claim for an increased evaluation."  However, in an August 2005 rating decision, the RO expanded the characterization of the Veteran's residuals of a left wrist sprain to include left elbow ulnar neuropathy.  A claim of entitlement to service connection for left ulnar neuropathy is thus moot as the benefit is already in effect.  See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991) (holding that when the RO listed a condition as service-connected on a rating sheet, it effectively granted service connection).  Consequently, the February 2013 SSOC's characterization and analysis of the issue was erroneous, and entitlement to a compensable rating for left ulnar neuropathy is properly on appeal.

In addition, to the extent the February 2013 SSOC and rating sheets since July 2007 no longer list left ulnar neuropathy as a service-connected disability so as to suggest severance of the disability, the Board finds that the severance of service connection would be improper.  Service connection for any disability granted or continued until Title 38 of the United States Code, which has been in effect for 10 or more years will not be severed except upon a showing that the original grant was based on fraud or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge.  This 10 year period is calculated from the effective date of the VA finding of service connection, to the effective date of the rating decision severing service connection.  38 U.S.C.A. � 1159 (West 2002); 38 C.F.R. � 3.957 (2013).  In this case, service connection for residuals of a left wrist sprain was granted by a September 1991 rating decision, with an effective date of April 20, 1991.  The August 2005 rating decision that expanded the characterization of the Veteran's service-connected residuals of a left wrist sprain to include left elbow ulnar neuropathy continued to list the effective date as April 20, 1991; thus, service connection for this disability was in effect for more than 14 years as of the August 2005 rating decision.  As such, the Veteran's left ulnar neuropathy cannot be severed unless it is shown that the original grant was based on fraud or the Veteran did not have the requisite service or character of discharge.  As none of these conditions have been met, the Board finds that any attempts to sever service connection for this disability were improper under the law.  Hence, entitlement to a compensable rating for left ulnar neuropathy is properly on appeal.

In addition, the Board's November 2012 remand noted that the Veteran underwent an examination on June 7, 2012 to determine the severity of her service-connected left wrist disability.  The examination report was virtually associated with the Veteran's claims file on July 27, 2012, and included findings relevant to the instant claim.  However, a July 2012 SSOC did not include the June 2012 examination report among the list of considered evidence or reference the examination report when analyzing the merits of the Veteran's claim.  The Board thus remanded the claim for initial consideration of this relevant evidence.  38 C.F.R. � 19.37(a) (2013).  The Veteran's claim was last adjudicated in a February 2013 SSOC.  Significantly, the February 2013 SSOC also does not include the June 2012 examination report among the list of considered evidence or reference the examination report when analyzing the merits of the Veteran's claim.  Thus, the Board must remand this matter for compliance with the Board's November 2012 remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

In March 2014 correspondence, the Veteran's representative requested that she be afforded a contemporaneous VA examination to assess the current nature, extent, and severity of her left ulnar neuropathy.  As this matter is being remanded anyway, the Board finds that the Veteran should be provided a new VA examination regarding her left ulnar neuropathy.

Finally, on remand the RO should secure, physically or electronically, any additional, pertinent VA treatment records.  See 38 C.F.R. � 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following action:

1. Associate with the claims file, physically or electronically, VA treatment records dated since April 2013.

2. Notify the Veteran that she may submit lay statements from herself as well as from individuals who have first-hand knowledge of her left elbow neurological symptoms.  She should be provided an appropriate amount of time to submit this lay evidence.

3. After associating any additional medical records and statements, schedule the Veteran for a VA examination to determine the current nature and severity of her left elbow neuropathy.  The claims file must be available to the examiner for review.  Any tests or studies deemed necessary should be performed.  The examiner should identify all pathology found to be present, including the Veteran's account of symptomatology.

All findings and conclusions should be set forth in a legible report.

4. Then readjudicate the claim.  If the benefit sought on appeal remains denied, then the Veteran and her representative should be furnished with a supplemental statement of the case (SSOC) that addresses actions taken since the issuance of the last SSOC (to specifically include consideration of the June 2012 examination report) and given the opportunity to respond.  The case should then be returned to the Board for further appellate consideration, if 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. 2013).

______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: M C GRAHAM

text:
Citation Nr: 1419000
Decision Date: 04/30/14    Archive Date: 05/06/14

DOCKET NO.  09-05 591	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines

THE ISSUE

Whether the appellant's deceased spouse had qualifying service (and was a Veteran) for the purpose of establishing basic legal entitlement to VA death benefits.

ATTORNEY FOR THE BOARD

T. Matta, Associate Counsel

INTRODUCTION

The appellant alleges that her deceased husband had recognized military service in the United States Armed Forces of the Far East (USAFFE) during World War II.  He died in July 1997.  The case is before the Board of Veterans' Appeals (Board) on appeal from April and July 2008 decisional letters of the Manila, Philippines Department of Veterans Affairs (VA) Regional Office (RO).

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

REMAND

A review of the record reveals that further development is needed to ensure due process and to comply with VA's duty to assist the appellant in the development of facts pertinent to her claim. See 38 C.F.R. � 3.159.

A printout from the Beneficiary Identification Records Locator Subsystem (BIRLS) Death File notes that the decedent's claims file, located in the Manila RO, was destroyed in November 1995, nearly two years prior to his death.  It is well-established that in cases such as this where records in the custody of VA have been lost, VA has a "heightened" duty to assist in the development of the claim. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005).  There is no evidence to suggest that any attempt was made to rebuild the claims file.  Further, there is no evidence to suggest that the appellant was advised that the claims file was destroyed.

Additionally, the Board finds it reasonable to assume that, based on the evidence of record, the decedent may have filed an earlier claim for benefits with the Manila RO prior to his death.  While the claims file is unavailable, there may be information in the decedent's administrative records that show the type of claims he filed and the disposition of those claims, all of which have bearing on the appellant's claim for VA death benefits.  Additionally, the appellant may have kept copies of such records.
Accordingly, the case is REMANDED for the following:

1.  The AOJ must arrange for exhaustive and expeditious development to reconstruct the decedent's claims file to the fullest extent possible, to include searching all pertinent records for copies of any administrative decisions addressing any claims filed prior to his death; asking for copies of any (and all) records the AOJ may have received from Federal records depositories, to include the National Personnel Records Center (e.g., certifications of service/nonservice) or requesting recertification, as indicated if copies of previous certifications are unavailable; and asking the appellant to submit copies of all evidence or information in her possession pertaining to any claim previously filed by her husband.

If the record cannot be reconstructed, this must be so noted for the record with the scope of the search described, and the appellant should be so notified.

2. The AOJ should thereafter arrange for any further development indicated (i.e., based on records received).

3. Thereafter, the AOJ should then review the record and readjudicate the appellant's claim.  If it remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the appellant the opportunity to respond.  The case should then be returned to the Board.

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 for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2013).

_________________________________________________
M. C. GRAHAM
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).


judge_norm: P M DILORENZO

disposition: granted

condition: gi

text: Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of stomach surgery is granted.

text:
Citation Nr: 1420000
Decision Date: 05/05/14    Archive Date: 05/16/14

DOCKET NO.  12-10 720	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut

THE ISSUE

Entitlement to compensation under 38 U.S.C.A. � 1151 for residuals of stomach surgery.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

D. Bredehorst

INTRODUCTION

The Veteran served on active duty from July 1962 to March 1967.

This appeal to the Board of Veterans' Appeals (BVA) originated from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

Unfortunately, the Veteran died in September 2011.  For claimants who died on or after October 10, 2008, (as is the case here), the Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, � 212, 122 Stat. 4145, 4151 (2008) created a new 38 U.S.C.A. � 5121A, which permits an eligible person to file a request to be substituted as the appellant for purposes of processing the claim to completion.  In this case, the record reflects that after the Veteran's death, the Veteran's wife (now the appellant in this case) submitted evidence that showed that she was the Veteran's wife at the time of his death, and the RO subsequently approved her application for substitution.  With this background, the Board recognizes the substitution of the Veteran's surviving spouse as the appellant in this case.

The appellant presented testimony before the Board at a video-conference hearing in November 2013.

FINDING OF FACT

The Veteran had additional stomach disability caused by VA treatment and the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the treatment.

CONCLUSION OF LAW

The criteria for compensation under 38 U.S.C.A. � 1151 for residuals of stomach surgery have been met. 38 U.S.C.A. �� 1151, 5107 (West 2002 & Supp. 2012); 38 C.F.R. �� 3.102, 3.361 (2013).

REASONS AND BASES FOR FINDING AND CONCLUSION

Under 38 U.S.C.A. � 1151, compensation is available to a Veteran when additional disability is caused by VA medical or surgical treatment and the proximate cause of the disability is (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care or medical or surgical treatment; or (B) an event not reasonably foreseeable.  38 U.S.C.A. � 1151; 38 C.F.R. � 3.361.

Here, the Veteran was hospitalized at a private hospital in December 1999 for repair of a large ventricle incisional hernia with mesh implant.  In November 2003, he was seen in a VA emergency room due to increased redness of the abdominal wall at the surgical site with associated chills and sweats.  He was found to have fluid collection anterior to the ventral mesh.  The day following his admission, the fluid spontaneously drained and the wound was debrided and the cavity was explored; a culture was sent out.  He was discharged in December 2003 with home care service.  From this point on, he experienced recurrent problems and complications associated with the ventral hernia mesh.

In January 2004, he returned to the VA emergency room with symptoms of abdominal wall tenderness and firmness, chills, fever, and odorous discharge.  A CT scan revealed a large collection of fluid.  The assessment was abdominal wall abscess, which was debrided at bedside and monitored.  Blood cultures were positive for gm and cocci.  A pre-operative surgical progress note indicated he was in urgent need of removal of the infected mesh and irrigation of the wound, which was accomplished that same day.

In March 2004, he was diagnosed with osteomyelitis that was likely related to MSSA-infected ventral hernia repair from January of that year.

A May 2005 addendum note from a VA physician shows Dr. A. S. was concerned the Veteran was not getting proper wound care.

An August 2005 VA record indicated the Veteran's wound had persistent draining sinuses, although a recent CT scan revealed no abscess collection beneath the wound.  Examination of the sinuses revealed black material at the base, portions of which were removed.  The sinuses were debrided of all the mesh that was easily obtainable.  The assessment was there was retained mesh within the wound causing a foreign body reaction and preventing further healing.

In September 2005, the Veteran's wound had visible portions of mesh that were removed.  The physician noted the Veteran still had retained mesh and it was believed the mesh would eventually work its way out of the wound.

In February 2006, the Veteran reported no improvement in the infected mesh.  There were 3 small opening in the wound that drained foul-smelling fluid.  Mesh was visualized that was removed using pickups and scissors.  Additional mesh was noted but not removed due to possible adherence to the bowel.  The assessment notes status post umbilical hernia repair 2 years earlier complicated by dehiscence, wound infection, MSSA bacteremia with subsequent osteomyelitis, and chronic infected mesh status post surgical removal of infected mesh.  It was expected that the infected mesh would work its way out of the wound, but due to chronic infection and pain with no improvement, the best course was partial removal of the infected mesh in the operating room.  The surgery was performed the following month without complications.  The findings were large area at mid abdomen of mesh that was infected and clearly intraperitoneal; there were also multiple adhesions lysed.

A September 2007 VA record notes the Veteran still had a large ventral hernia with an open wound with a draining sinus tract.  He underwent elective abdominal exploration that was to include possible removal of mesh, but the operative report indicates debridement, drainage, irrigation and suction, and implantation of betadine mesh in the lower portion of the wound.

In April 2009, the Veteran was seen by orthopedic for possible total hip replacement.  On examination, he was found to have an abdominal wound with copious foul smelling drainage that appeared grossly infected.  A June 2009 discharge summary states the Veteran had significant pain that required hip replacement, but "Orthopedics would not pursue the procedure until his abdominal wounds are cared for appropriately to reduce the risk of infection to the hips prosthesis."

In June 2009, he underwent debridement of fascia; excision of fascial sinus tract; small bowel resection and primary repair; lysis adhesions; and repair of ventral hernia with veritas collagen matrix.

In October 2010, a nurse practitioner indicated she reviewed the Veteran's VA treatment records from November 2003 to March 2010 that were provided to her, and that there were additional records missing during this period that would make her review complete.  She summarized the records at her disposal and offered several opinions.  In essence, she found several failures on VA's part in the Veteran's treatment and possibly an issue with surgical technique in the June 2009 resection and repair of the small bowel.  She concluded these potential failures to meet the standards of care resulted in chronic abdominal pain, chronic wound infections, and open non-healing abdominal wounds.

In February 2011, a private physician offered a statement after reviewing extensive documents in which he opined the Veteran "was the unfortunate victim of deviations from the standards of care and was caused because of this to suffer grievously".  He added it became abundantly apparent that the mesh had failed and, as such, was a source of infections processes that required complete elimination and removal, which was not done.  Failure to do so led to continuing complications.  Had proper techniques and methods been employed in the 2003 to 2004 time frame and thereafter healing in all likelihood would have occurred and the Veteran would have been restored to good health.  He adopted many of the findings made by the nurse.

VA obtained an opinion by a Chief of Surgery at the VA Medical Center in West Roxbury, Massachusetts in May 2013.  The surgeon opined the Veteran received standard of care every time he was seen.  He stated this was a complex problem in a person who was obese and diabetic where complete mesh excision was very difficult to achieve and ongoing infection very difficult to control.  Every time he was admitted he received appropriate treatment in a timely manner.  Very radical surgery, extent of debridement and the use of different meshes from the ones used at VA is a matter of controversy and a matter of judgment by the treating surgeon who in this case did not deviate from the standard care.  The course of event is unfortunately not unusual in patients sustaining a mesh infection and is not the result of poor care received at the West Haven VA.

In view of the foregoing, the Board finds that the evidence for and against the claim is in equipoise.  38 U.S.C.A. � 5107; 38 C.F.R. � 3.102.  Therefore, entitlement to compensation under 38 U.S.C.A. � 1151 for residuals of stomach surgery is granted.

ORDER

Entitlement to compensation under 38 U.S.C.A. � 1151 for residuals of stomach surgery is granted.

____________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: DEBORAH W SINGLETON

text: 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. 2013).

text:
Citation Nr: 1421000
Decision Date: 05/09/14    Archive Date: 05/21/14

DOCKET NO.  12-26 666	)	DATE
	)
	)

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

THE ISSUE

Whether new and material evidence has been received to reopen the claim of entitlement to service connection for chronic hypochromic anemia.

REPRESENTATION

Appellant represented by:	West Virginia Division of Veterans Affairs

ATTORNEY FOR THE BOARD

K. Gielow, Counsel

INTRODUCTION

The Veteran served on active duty from April 1981 to May 1981.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.

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

REMAND

According to the Veteran's August 2012 VA Form 9, Appeal to the Board of Veterans' Appeals, she requested a hearing before a Board member at a local office (Travel Board hearing).  A review of the paper file and electronic record is absent for any subsequent documentation to indicate that she may have withdrawn this request; to the contrary, the September 2012 deferred rating decision and VA Form 8 (Certification of Appeal) referenced the outstanding request.

      Therefore, the Veteran should be scheduled for a Travel Board hearing in accordance with her expressed desire.  Because such hearings are scheduled by the RO, the Board must remand the case to the RO for that purpose, to ensure full compliance with due process requirements.  See 38 C.F.R. � 20.704 (2013).

Accordingly, the case is REMANDED for the following action:

Schedule the Veteran for a Travel Board hearing.  A copy of the notice to the Veteran of the scheduling of the hearing should be placed in the record.

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. 2013).

_________________________________________________
DEBORAH W. SINGLETON
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).