Citation Nr: 0005786 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 94-23 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased evaluation for left leg stasis dermatitis with ulcers and thrombophlebitis, currently rated as 30 percent disabling. 2. Entitlement to special monthly compensation based on the need for regular aid and attendance or on account of being housebound. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Solomon J. Gully, IV, Associate Counsel INTRODUCTION The veteran served on active duty from March 1945 to December 1946. This matter is currently before the Board of Veterans' Appeals (Board) on appeal from a May 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office in Los Angeles, California. REMAND Since the September 1999 Supplemental Statement of the Case, the veteran submitted additional evidence directly to the Board, without waiving the RO's consideration of this evidence. In October 1999 correspondence, the veteran related that his left leg was amputated the previous month due to his service-connected left leg disability. In support of his claim, he submitted VA medical records from September to October 1999, relating to the left leg amputation and follow-up treatment. Accordingly, this evidence is "pertinent" to the veteran's current claims. 38 C.F.R. § 20.1304(c)(1999) 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. Consistent with the provisions of 38 C.F.R. §§ 20.1304(c), this evidence must be referred to RO for review. The VA has a duty to assist the veteran in the development of facts pertaining to his claims. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1999). The Court has held that the duty to assist includes 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, 124 (1991). Further, the status of a disability is a medical determination which must be made from the records, without resort to independent medical judgment by the Board. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The duty to assist is neither optional nor discretionary. Littke v. Derwinski, 1 Vet. App. 90 (1990). As noted above, the veteran maintains that the September 1999 left leg amputation was related to his service-connected disability. However, as a lay person, he is not competent to relate the leg amputation to a specific cause. See Grivois v. Brown, 6 Vet. App. 136, 140 (1994), citing Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Further, the Board is not permitted to use its own medical judgment as to such questions. Thus, the Board believes that a medical opinion should be obtained as to whether the left leg amputation is due to the veteran's service-connected disability, and if so, whether he meets the requirements for regular aid and attendance. In light of the foregoing, the Board finds that further development, as specified below, is warranted. Accordingly, this case is REMANDED for the following development: 1. The veteran may submit additional evidence and argument in support of his claim. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The veteran should be requested to provide the names, address and approximates dates of treatment for all health care providers who may possess additional records pertinent to his claims. When the requested information and any necessary authorization have been received, to the extent possible, the RO should attempt to obtain copies of all indicated records and associate them with the claims file. 3. Upon completion of the above, the RO should forward the veteran's complete claims file to the appropriate physician for a medical opinion. The examiner should be requested to express an opinion as to the degree of medical probability, expressed in percentage terms if feasible, that the September 1999 left leg amputation was due to the veteran's service-connected left leg disability, as opposed to any nonservice-connected disability, and if so, whether he meets the requirements for regular aid and attendance. The report should reflect a review of the claims file and include a complete rationale for all opinions expressed. If the requested opinions can not be medically determined without resort to mere conjecture, this should be commented upon in the report. If an additional examination is deemed necessary, it should be scheduled. The claims file must be made available to the examiner for review in conjunction with the examination. 4. After the development requested has been completed, the RO should carefully review the evaluation report and the other development requested above to ensure compliance with this remand. If any development requested above has not been furnished, including any requested findings and/or opinions on evaluation, remedial action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). If the benefits sought on appeal are not granted, the veteran and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should then be returned to the Board for final appellate review. The veteran 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 Supp. 1999) (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 & Supp. 1999), 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) (1999).