Jacque

Hi everyone, Sorry I have not been able to login and reply but I have been super busy. I check backed on the case and notice there is something new from the 22nd. This is what is says. JUDGMENT The Court has issued a decision in this case. The time allowed for motions under Rule 35 of the Court's Rules of Practice and Procedure has expired. Under Rule 36, judgment is entered this date. Dated: October 22, 2010 I have no idea what that means? Could someone fill me in? Thanks

Thanks for the reply's I have been super busy the past couple of days. I will have a chance to reply later tonight.

Here is the copy/paste with the names removed. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. SCHOELEN, Judge: The appellant, appeals a July 14, 2008, Board of Veterans' Appeals (Board) decision that denied his claims for compensation benefits for a right below-the-knee amputation and renal failure pursuant to 38 U.S.C. § 1121. Record (R.) at 2-15. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board decision and remand the matter for further proceedings consistent with this decision. I. FACTS The appellant served in the U.S. Army from October 1972 through October 1974 and from March 1976 through April 1978. R. at 1181. The appellant was diagnosed with diabetes in the mid-1980s and received treatment for this condition at the Grand Junction (Colorado) VA Medical center (VAMC). The record contains medical records from the facility, dating to 1999. The appellant was prescribed an oral hypoglycemic medication (glyburide) to treat his diabetes. There are several medical records dated between February and December 1999 that indicate that the appellant was occasionally noncompliant with his medication regimen and that he was not following a diabetic diet. R. at 154, 161-63; but see R. at 97, 474, 548-49 (testimony by veteran indicating that he complied with medical instructions). In December 1999, the appellant was hospitalized for "poorly controlled diabetes" with "rampant" end-organ damage and an infected foot ulcer with osteomyelitis. R. at 185. The appellant's significant problems included a foot ulcer with osteomyelitis, marked hyperglycemia, poor diabetic control, hypokalemia, peripheral neuropathy, diabetic neuropathy, diabetic retinopathy, hypercholesterolemia, hypertriglyceridemia, and possible nephrotic syndrome. R. at 185. The admitting physician stated that "clearly" the oral hypoglycemics (Glyburide) that had been prescribed were "inadequate" and that "[the appellant's] young age and widespread end-organ damage argue for much tighter control of his diabetes." R. at 186. In an effort to control the diabetes, the physician recommended that an "effective BID insulin regimen" be established. Id. The physician indicated that the appellant would be placed on "insulin and diet with adjustments as needed to maintain his blood sugars in acceptable range." R. at 182. The VA doctor further noted that the appellant's blood sugars were "generally" in the mid to high 400s, and that occasionally his blood sugars were in excess of 800. R. at 184. By January 19, 2000, his blood sugars "had come under much better control with a controlled diet and insulin." R. at 182. The appellant's foot ulcers were initially treated with antibiotics and multiple foot debridements. R. at 181, 191-93. However, in February 2000, the appellant's osteomyelitis had progressed and his diabetic foot ulcer had worsened. R. at 176. In March 2000, the appellant underwent a right below-the-knee amputation. Id.; see also R. at 172-74. The appellant filed a claim seeking disability compensation for the right below-the-knee amputation and for renal failure. R. at 125. The appellant alleged that VA provided inadequate treatment for diabetes mellitus resulting in a nonhealing, infected diabetic foot ulcer, which in turn led to the right below-the-knee amputation. Id. Additionally, he stated that he developed the diabetic ulcers on his right heel because of the orthotics that VA prescribed. R. at 125. The appellant also alleges that VA's inadequate treatment of his diabetes resulted in the development of nephrotic syndrome and renal failure. R. at 125. The thrust of the appellant's claim is that VA failed to institute insulin therapy to control his diabetes and instead relied on oral hypogylcemic drugs that did not adequately control his diabetes. R. at 125. In this regard, the appellant alleges that if he had been prescribed insulin earlier to control his diabetes, he would not have developed the complications that resulted in the right below-the-knee amputation and renal failure. Id. In support of his claim, the appellant submitted opinions from Dr. Keveney, a private nephrologist. R at 509-10; 729-30. Dr. Keveney opined that VA violated the standard of care by failing to "institute intensive therapy to control his blood sugars early in the course of his disease, although he had clear road signs of being a patient that would have a progression of diabetic complications." R. at 729. Additionally, Dr. Keveney explained that white blood cells that fight infections do not function properly when a person's blood sugars are above 300. R. at 509. Dr. Keveny explained that "t is imperative that when patients are having difficulties with the infected processes that their sugars be maintained below 200." R. at 729. In April 2005 a VA medical examiner opined that the appellant's nonhealing foot ulcer was one of the complications or sequelae of his diabetes mellitus as he was noncompliant with treatment and dietary instructions. R at 548-49. He concluded that the appellant's amputation was not caused by the orthotics prescribed by VA to treat his mid-foot pain. Id. In May 2006, the Board remanded the appellant's claims to obtain treatment records from the Grand Junction VAMC. R at 440-50. In July and August 2006, the VA Appeals Management Division requested "any medical records associated with the veteran's treatment for diabetes mellitus, prior to 1999, to include those from Dr. Corduban/Courdabon." R at 113-22, 202-03, 431-32. In September 2006, the Grand Junction VAMC replied that it had no records on file prior to June18, 2001. R at 118. There is no record of any further inquiry by VA even though it is clear that the statement from the VAMC was incorrect because the appellant's claims file already contained some medical records from this facility prior to June 2001. In July 2007, VA obtained another VA medical opinion regarding the appellant's medical treatment. R at 96-97. The VA examiner opined that the appellant's treatment at the Grand Junction VAMC was within the standards of medical care for diabetes mellitus type 2 at that time. Id. He also saw no evidence that the below-the-knee amputation or renal insufficiency was due to carelessness, negligence, or lack of proper skill, error in judgment, or fault on the part of VA. Id. While noting that there was an indication that the appellant had been noncompliant with his treatment regimen in 1999, the VA examiner stated that there was less than a 50/50 chance that the complications could have been avoided. Id. The Board issued the July 14, 2008, decision here on appeal. The Board denied the appellant's claims after concluding that his below-the-right-knee amputation and renal disease were not proximately caused by VA medical treatment. R. at 5. In reaching this conclusion, the Board determined that neither disability resulted from "VA negligence, carelessness, or similar instance of fault." Id. Alternatively, the Board concluded that neither disability was the result of an unforeseeable event. Id. Regarding the duty to assist, the Board determined that the duty had been satisfied. In reaching this conclusion, the Board stated that "the veteran's service treatment records have been associated with the claims file as have relevant post-service private and VA medical treatment records." R. at 8. II. ANALYSIS A. Entitlement to VA Benefits under 38 U.S.C. § 1151 Pursuant to 38 U.S.C. § 1151, a veteran may be compensated for a "qualifying additional disability" that was not the result of the veteran's willful misconduct and that is actually and proximately caused by VA hospital care, medical or surgical treatment, or examination furnished by VA. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361 (2010) (implementing regulation).1 Section 1151 awards compensation for "qualifying additional disability" in the same manner as if such additional disability were service connected." "To determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the . . . . medical or surgical treatment . . . upon which the claim is based to the veteran's condition after such . . . treatment." 38 C.F.R. § 3.361(b) (2010). A "qualifying additional disability" is actually caused by VA care, treatment, or examination when the VA care, treatment or examination "resulted" in the ____________________ Because the appellant's section 1151 claim was filed after 1 1997, the amended version of section 1151, which incorporates a fault requirement in response to the U.S. Supreme Court's holding in Brown v. Gardner, 513 U.S. 115 (1994), is applicable to his claim. 38 U.S.C. § 1151(a)(1)(A); see Pub. L. No. 104-204, § 422(b)(1), ©, 110 Stat. 2026-27 (1996); see also Boggs v. West, 11 Vet.App. 334, 343-44 (1998) (noting that amended section 1151 applies only to claims filed on or after October 7, 1997, pursuant to specific provision of Congress). additional disability. 38 C.F.R. § 3.361©(1) (2010). If an additional disability is caused by a veteran's failure to properly follow medical instructions, such a disability will not be considered to be caused by VA hospital care or medical treatment. 38 C.F.R. § 3.361©(3) (2010). A "qualifying additional disability" is proximately caused by VA medical care, treatment, or examination when the disability results from either the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the medical treatment; or the disability results from "an event" that is "not reasonably foreseeable." 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(d)(1). To establish that the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, the claimant must show either (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the care, treatment, or examination without the veteran's informed consent. 38 C.F.R. § 3.361(d)(1). Alternatively, to establish that the proximate cause of a disability was an event that was not reasonably forseeable, the evidence must demonstrate that a reasonable health care provider could not have forseen the disability. The event does not have to be "completely unforeseeable or unimaginable" but it must "be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided." 38 C.F.R. § 3.361(d)(1). In this case, the appellant alleges that the proximate cause of his additional disabilities is the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the medical treatment. Specifically, he alleges that VA failed to exercise the degree of care that would have been expected of a reasonable health care provider. B. Duty To Assist and Comply With Remand Orders The parties agree that the Board committed error when it decided his claims without obtaining treatment records from the Grand Junction, Colorado, VA medical center (VAMC) for the period prior to 1999. Appellant's Brief (Br.) at 24-27; Secretary's Br. at 6-12. The Secretary has a duty to assist a claimant in obtaining evidence necessary to substantiate the claim. 38 U.S.C. § 5103A(a)(1). The Secretary's duty to assist includes making "reasonable efforts to obtain relevant records . . . that the claimant adequately identifies to the Secretary and authorizes the Secretary to obtain." 38 U.S.C. § 5103A(b)(1); see Moore v. Shinseki, 555 F.3d 1369, 1372-75 (Fed. Cir. 2009). If the records are maintained by a Federal department or agency, "efforts to obtain those records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile." 38 U.S.C. § 5103A(b)(3); 38 C.F.R. § 3.159(e) (2010). If the Secretary is unable to obtain those records after making reasonable efforts to do so, the Secretary must provide notice of that fact to the claimant. 38 U.S.C. § 5103A(b)(3); 38 C.F.R. § 3.159(e). The Court reviews the Board's findings with respect to whether the Secretary has fulfilled his duty to assist under the "clearly erroneous" standard of review. See Hyatt v. Nicholson, 21 Vet.App. 390, 395 (2007). Additionally, a remand by this Court or the Board confers on the veteran the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. Stegall v. West, 11 Vet.App. 268, 271 (1998). In May 2006, the Board remanded this case to the RO with the express direction to obtain VAMC records dating before December 1999. R. at 440-50. The VA Appeals Management Center requested these records in July and August 2006. R. at 114, 121. In September 2006, the Grand Junction VAMC responded that the appellant did not receive treatment from that facility until June 18, 2001. R. at 118. It was clear that this response was inaccurate because the record already contained some medical records from that facility from 1999 to 2001. Although this response was obviously inaccurate, no further inquiry was made to the Grand Junction VAMC. The Court holds that the Board violated its statutory duty to assist and that it failed to ensure compliance with the Board's May 2006 remand instructions. C. Inadequately Developed Record The record does not support the appellant's argument that the Board's decision should be reversed because the Secretary erroneously obtained, and the Board relied on, two 2007 VA medical examinations in violation of Mariano v. Principi, 17 Vet.App. 305 (2003). Although Mariano states that it "would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against an appellant's case," 17 Vet.App. at 312, the Court addressed this statement in Douglas v. Shinseki, 23 Vet.App. 19 (2009). In Douglas the Court stated that Mariano must be read in context and held that the Secretary may undertake the development of additional evidence if necessary to render an informed decision on the claim and if carried out in a neutral and unbiased manner. Douglas, 23 Vet.App. at 26. Here, contrary to the appellant's assertions, nothing in the record suggests that the VA medical opinions were sought for the purpose of developing evidence against his claims. Although the VA request for the second medical opinion refers to the fact that there is an opinion in the record from Dr. Keveney, there is nothing in the VA request to show that VA was seeking to develop evidence to deny the appellant's claims. Thus, the appellant has not met his burden of demonstrating error in the determination to seek additional evidence to decide his claim. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (appellant bears burden of demonstrating error on appeal). However, the Court agrees with the appellant that the two VA opinions that the Board relied on to deny his claims were inadequate. Appellant's Br. at 18-21. The appellant's claims are based on his theory the he suffers from two disabilities that were proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the medical treatment. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(d)(1). To establish such carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, a claimant may show that VA failed to exercise the degree of care expected of a reasonable health care provider. Here, the appellant claims that VA-prescribed oral medication did not control his diabetes and that VA physicians should have placed him on insulin before he developed complications such as the diabetic foot sore and renal disease. The record in this case contains a disagreement among the medical experts as to whether VA exercised the degree of reasonable care expected of a reasonable health care provider. Two VA medical examiners summarily concluded that VA physicians followed the appropriate standard of care. R. at 96-97. However, the VA medical examiners' opinions are inadequate because neither opinion explains with sufficient detail the standard of care expected of health professionals when prescribing medication to treat a diabetic patient, including the blood glucose levels that would cause a physician to discontinue oral medication and prescribe insulin. See Stefl v. Nicholson, 21 Vet.App. 120, 124-25 (2007) (holding that a medical examiner must support his conclusions with an analysis that is adequate for the Board to consider and weigh against contrary opinions); see also Nieves- Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (noting that "a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two"). The medical opinions do not define an accepted standard of care against which the care provided to the appellant in this case might be measured. Additionally, an adequate opinion would relate the appellant's specific medical history to the appropriate standard of care. Green v. Derwinski, 1 Vet.App. 121, 124 (1991) (holding that a medical opinion is considered adequate where it is based upon consideration of the veteran's prior medical history so that the Board's "evaluation of the claimed disability will be a fully informed one"). Here, there is an indication that by December 1999, the appellant's blood glucose levels exceeded 400, and occasionally 800. R. at 184. Because the record does not include the appellant's pre-1999 treatment records, it is unclear how long the appellant had been experiencing poorly controlled blood sugars. However, at the time of the appellant's December 1999 hospitalization, the VA physician concluded that the appellant's blood glucose levels were not being adequately controlled by oral medication and that he needed to be on insulin. R. at 184-85. Yet, the VA examiners' opinions do not address whether a reasonable health care provider exercising a reasonable degree of care would have placed a patient with poorly controlled diabetes, such as the appellant, on insulin prior to December 1999, and whether the appellant's medical complications could have been avoided had he been placed on such medication. The appellant argues that reversal is appropriate in this case because Dr. Keveney's medical opinion addressed adequately whether the VA physicians failed to exercise the appropriate standard of care. Appellant's Br. at 11-12. The Court is not persuaded by the appellant's argument because Dr. Keveney's opinion does not discuss what effect, if any, the appellant's noncompliance with his medical regimen in 1999 had on his subsequent development of the complications that led to his amputation and renal failure. The omission of such a discussion makes it impossible for the Court to conclude that the only permissible view of the evidence is that the appellant's disabilities were the proximate cause of VA's health care. See Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (holding that "reversal is the appropriate remedy when the only permissible view of the evidence is contrary to the Board's decision"). Generally, "where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate," a remand is the appropriate remedy. Tucker v. West, 11 Vet.App. 369, 374 (1998). Here, the record needs further development of the medical evidence, including the appellant's treatment records from the Grand Junction VAMC prior to December 1999. See Douglas, 23 Vet.App. at 26 (holding that the Secretary is vested with the authority to gather evidence necessary to render an informed decision on the claim, even if that means gathering and developing negative evidence). III. CONCLUSION Upon consideration of the foregoing analysis, the record on appeal, and the parties' pleadings, the July 14, 2008, Board decision is VACATED and the matter is REMANDED for action consistent with this decision. DATED: September 30, 2010

Not sure, Thanks for the post though.

Hi, I checked my case online today and saw that it had been updated. Can anyone tell me if this is good or not? What does it mean where it says consistent with this decision. I can also post my claim on here if needed. This was the conclusion. Upon consideration of the foregoing analysis, the record on appeal, and the parties' pleadings, the July 14, 2008, Board decision is VACATED and the matter is REMANDED for action consistent with this decision. DATED: September 30, 2010