Veterans Medical Advisor

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                         Case from Bureau of Veterans Appeals

Dr. Bash is a veteran of


Citation Nr: 0317191

Decision Date: 07/23/03 | Archive Date: 07/31/03

DOCKET NO. 99-18 080

On appeal from the Department of Veterans Affairs (VA) Regional Office in Baltimore, Maryland

THE ISSUE

Entitlement to service connection for bilateral ankle disability.

REPRESENTATION

Appellant represented by: Kathy A. Lieberman, Attorney-at-Law

ATTORNEY FOR THE BOARD

J. Barone, Associate Counsel

INTRODUCTION

The appellant had active duty for training from October 5, 1979, to October 22, 1979.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland.

The Board denied the appellant's claim in August 2001. The appellant appealed the Board's decision, and in December 2002 the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999, hereinafter Court) granted a joint motion to remand the case and vacated the Board's August 2001 decision.

REMAND

During the pendency of the appellant's claim, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law and codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). In addition, regulations implementing the VCAA were published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2002). The liberalizing provisions of the VCAA and the implementing regulations are applicable to the appellant's claim.

The Act and implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well- grounded claim, and provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.

The appellant contends that VA did not fulfill its duty to assist her in developing her claim. Specifically, she has indicated through her attorney that although she identified various sources of treatment for her bilateral ankle disability, VA did not attempt to obtain records from two identified sources. The record reveals that the appellant identified Dr. Noel Barnett and the University of Maryland Hospital as sources of treatment for her claimed disability. However, there is no evidence that the RO made an attempt to obtain such records.

The Board also notes that in May 2003 the appellant's attorney submitted an opinion from Craig N. Bash, M.D., regarding the etiology of the appellant's bilateral ankle disability. While Dr. Bash's report indicates that he reviewed various medical records in reaching his opinion, it is not clear that this opinion was based on a review of all pertinent records. In particular, the outstanding records referenced above presumably were not reviewed by Dr. Bash. Fulfillment of the statutory duty to assist includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991). Thus, the appellant should be afforded a current VA examination, and the claims folder should be made available to the examining physician in conjunction with the examination.

In light of these circumstances, the case is REMANDED to the RO for the following:

1. The RO should issue the appellant a VCAA notice letter with regard to her claim of entitlement to service connection for bilateral ankle disability. The information requested of the appellant should include identifying information regarding claimed treatment for her bilateral ankle disability at the University of Maryland Hospital, to include the dates of treatment and names of treatment providers. The RO must also inform the appellant that any evidence and information submitted or identified in response to the letter must be received by the RO within one year of the date of the RO's VCAA notice letter.

2. When the requested information and any necessary authorization have been received, the RO should attempt to obtain all pertinent records from the University of Maryland Hospital, and from Noel Barnett, PTM, Executive Park West, 3100 Timanus Lane, Suite 108, Baltimore, MD 21244, as well as any other pertinent records identified but not provided by the appellant.

3. If the RO is unsuccessful in obtaining any records identified by the appellant, it should so inform the appellant and her representative, and request them to provide a copy of such records.

4. Upon completion of the above-directed development, the RO should arrange for the appellant to undergo a VA orthopedic examination to determine the nature, extent and etiology of the appellant's claimed bilateral ankle disability. The appellant should be properly notified of the date, time, and place of the examination in writing. The appellant's claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner. The examination report is to reflect that a review of the claims file was made.

A complete history pertaining to the appellant's claimed bilateral ankle disability should be elicited. The examiner should identify all currently existing disorders of the appellant's ankles.

Based on the review of the claims folder, to include the May 2003 statement from Dr. Craig N. Bash, and the examination results, the examiner should provide an opinion with respect to each currently present ankle disorder as to whether it is at least as likely as not that the disorder originated during the appellant's active duty for training, chronically increased in severity as a result of such service or is otherwise etiologically related to the appellant's active duty for training, to include whether the post-service ankle fracture is etiologically related to a disorder acquired or chronically worsened during the period of active duty for training.

The complete rationale for all opinions provided must be clearly set forth in the examination report. If the examiner disagrees with the opinion of Dr. Bash, the examiner should explain why.

5. The RO should also undertake any other development required to comply with the VCAA and the implementing regulations.

6. The RO should then readjudicate the appellant's claim in light of the evidence received since the supplemental statement of the case issued in April 2001. If the benefit sought on appeal is not granted to the appellant's satisfaction, the RO should issue a supplemental statement of the case and afford the appellant and her representative an appropriate opportunity to respond.

Thereafter, the case should be returned to the Board for further appellate action. The appellant need take no action until she is otherwise notified by the RO. By this remand, the Board intimates no opinion as to any final outcome warranted.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999).

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 Appeals for Veterans Claims 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 2002) (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.




Shane A. Durkin

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) (2002).



Department of Veterans Affairs

drbash@doctor.com

______________________

Craig N. Bash M.D., M.B.A.

Neuro-Radiologist and Associate Professor

Uniformed Services School of Medicine

NPI/UPIN-1225123318

4938 Hampden Lane
Bethesda, Md 20814

Cell/Text 240-506-1556
Fax 301-951-9106