Citation Nr: 0114514 Decision Date: 05/24/01 Archive Date: 05/30/01 DOCKET NO. 00-22 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for stomach and intestinal disorders. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Associate Counsel INTRODUCTION The veteran served on active duty from March 1962 to December 1964. This matter is before the Board of Veterans' Appeals (Board) from a June 1999 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied the claim. The veteran provided testimony at personal hearings conducted before personnel at the RO in April and November 1999. Transcripts of both hearings are of record. A July 1998 statement from the VA Records Management Center is on file which noted that the veterans' claims folder had not been located, and that a rebuilt folder was enclosed. As an additional matter, the Board notes that the veteran had also submitted a timely Notice of Disagreement to a June 1998 rating decision which denied his claim of entitlement to nonservice-connected pension benefits. However, nonservice- connected pension benefits were subsequently granted by a December 1999 rating decision. In view of the foregoing, this issue has been resolved and is not on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997), and Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). REMAND The veteran has contended that he developed gastrointestinal (GI) bleeding in 1991 as a result of ibuprofen/nonsteroidal anti-inflammatory drugs (NSAIDS) that were prescribed by VA in the early 1990s for carpal tunnel syndrome. Further, he maintains that he has a current stomach and intestine problems as a result of being prescribed this medication. At his April and November 1999 personal hearings he testified that he had no stomach problems prior to being prescribed ibuprofen. He testified at the November 1991 hearing that he was prescribed too high of a dose of ibuprofen by VA. Title 38, United States Code § 1151 provides that, where a veteran suffers an injury or an aggravation of an injury resulting in additional disability or death by reason of VA hospitalization, or medical or surgical treatment, compensation shall be awarded in the same manner as if such disability were service connected. The record reflects that the veteran filed his 38 U.S.C.A. § 1151 claim in November 1998. Effective October 1, 1997, 38 U.S.C.A. § 1151 was amended by Public Law 104-204 to require a showing not only that the VA treatment in question resulted in additional disability but also that the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of additional disability was an event which was not reasonably foreseeable. Private medical records from the Portland Adventist Hospital show that the veteran was hospitalized in April 1991. The discharge diagnoses were as follows: (1) iron deficiency anemia; (2) alcoholic liver disease with probably cirrhosis; (2.1) portal hypertension; (2.1.1) esophageal varices with probable intermittent bleeding: (2.1.2) ascites; (3) colon polyps; (4) diverticulosis; (5) alcoholism, chronic; and (6) fever, etiology unclear, resolved on observation, doubt alcoholic hepatitis. A report of history and physical noted that the veteran initially denied any prior GI problems, but subsequently admitted to being seen at the VA hospital in Portland or Vancouver in the early 1980's because of symptoms of gastroesophageal reflux. No formal evaluation was undertaken, and he was advised to sleep with two pillows. Further, the veteran reported that he had had intermittent retroxiphoid discomfort described as heartburn on occasion for many years, especially after the use of spicy foods for which Alka-Seltzer was used several times yearly (date of last use was unclear). He also reported that he had been using proprietary ibuprofen either as generic medication or Advil for right wrist pain on occasion for a number of years, and last used such medication in early March 1991 (emphasis added). Impressions based upon this history and examination of the veteran included probably iron deficiency, doubt malabsorption, likely due to GI blood loss (doubt genitourinary loss). Moreover, it was stated that the sources of the GI loss were possibly related to proximal gut loss due to peptic disease and proximal gut (history of NSAID use and occasional use of Alka-Seltzer for many years with gastroesophageal reflux by history), varices related to underlying liver disease, less likely due to arteriovenous malformation or neoplasm. Rule out distal gut blood loss secondary to neoplasm. Various VA medical records are on file which cover a period from November 1996 to January 2000. These records include hospitalization reports, examination reports, and outpatient records which show that the veteran was treated on various occasions for stomach and intestine problems. For example, the veteran underwent a period of VA hospitalization from October to November 1997 because of GI bleeds. Procedures performed during this hospitalization included exploratory laparotomy, gastrostomy, splenectomy, repair of hiatal hernia, and Nissen fundoplication. In March 1999, the veteran underwent a VA gastrointestinal examination. The examiner noted that the veteran's VA file was available and reviewed in addition to his electronic chart. The veteran reported that his problems began in 1991, when he was given ibuprofen for carpal tunnel syndrome. Shortly thereafter, he was hospitalized with a GI bleed that he asserted was secondary to NSAIDS. He also described his various stomach and intestine problems since that time, including his various periods of hospitalization. Following examination of the veteran, the examiner diagnosed, in part, GI bleeding, and noted that the veteran had had a many year history of multiple GI bleeding related probably to NSAID use initially, as well as to chronic alcohol abuse. It was also noted that the veteran had a history of gastritis, gastric ulcer, Barrett's esophagus without dysplasia, as well as colonic diverticula and colon polyps. The examiner further commented that the veteran was now status-post bleed 1997, requiring massive packed red blood cell transfusion. It was also noted that the veteran underwent laparotomy with gastrostomy, splenectomy, and Nissen fundoplication for hiatal hernia. The veteran seemed to be doing well, without significant abdominal pain. Additional diagnoses included history of alcohol-related liver disease; incisional hernia; and anemia. In January 2000, the veteran underwent surgery at the VA due to Barrett's esophagitis with severe dysplasia. This surgery was performed by Dr. D. In an April 2000 statement, Dr. D noted the procedures the veteran underwent during his October to November 1997 VA hospitalization, and stated that the veteran, at that time, was taking large amounts of NSAIDS. Further, Dr. D stated that these drugs likely accounted for the veteran's GI hemorrhage. A May 2000 Memorandum of Interview reflects that Dr. D was interviewed by officials with the VA Office of Inspector General to determine whether he had felt threatened by the veteran and coerced into writing the April 2000 statement in order for the veteran to obtain additional VA benefits. Dr. D stated that he first came into contact with the veteran approximately three to five years earlier, when the veteran complained of GI bleeding. In October 1997, Dr. D, having not been able to determine the cause of the veteran's bleeding, performed a splenectomy and a fundoplication, during which he observed that the veteran appeared to have an alcohol problem because of the condition of the liver. It was noted that the veteran never mentioned he was taking any NSAIDS when he first met Dr. D. Further, during the October 1997 surgery Dr. D also discovered that the veteran had a condition known as hypertension in the esophagus, which could be caused by alcohol abuse. Additionally, it was determined that the veteran had some pre-cancerous cells, or dysplasia, in the esophagus, which was a condition known as Barrett's syndrome. It was noted that Dr. D performed surgery in January 2000 because of the Barrett's syndrome by removing part of the veteran's esophagus and replacing it with part of the intestine. Dr. D noted that the veteran complained about various doctors prescribing Motrin (an NSAID), which the veteran felt caused his GI bleeding. The veteran never identified the doctors to Dr. D, and Dr. D never prescribed NSAIDS to the veteran. Moreover, Dr. D stated that he could not find anything in the veteran's medical file showing that VA physicians had prescribed NSAIDS. The Memorandum of Interview stated that, in April 2000, Dr. D agreed to write a letter for the veteran regarding the GI bleeding problems. The letter was not addressed to anyone in particular, and contained only three sentences. Dr. D stated that the second sentence, which referenced the veteran's use of large amounts of NSAIDS, was based on the veteran's self- reporting, and not on any medical fact or opinion by Dr. D. Further, Dr. commented that he felt somewhat coerced to write the letter, but it was based on the veteran's persistence and not by any threats made. When asked if he knew why the veteran wanted the letter, Dr. D stated that the veteran wanted to get more benefits for his esophagus problem. Dr. D added that he wrote these types of letters for his VA and Oregon Health Sciences University patients approximately four times a year, and that most of these letters dealt with complex problems his patients had and his attempt to explain those problems in simpler terms. The Board notes that here has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This law also eliminates the concept of a well-grounded claim and supersedes the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099- 2100 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). The Board has reviewed the claims file and identified certain assistance that must be rendered to comply with the VCAA. As noted above, the veteran asserted that he was prescribed ibuprofen by VA sometime in the early 1990s, and that this resulted in his developing chronic stomach and intestine problems, including GI bleeding. Both the Portland Adventist Hospital records from 1991, as well as the March 1999 VA examination report, tend to show that ibuprofen/NSAIDS were at least a contributing factor in the veteran developing GI bleeding. However, no VA medical records appear to be on file prior to November 1996. Consequently, there is no confirmation that the veteran was actually prescribed ibuprofen, or any other NSAID, by VA prior to his 1991 private hospitalization for GI bleeding. Under the law, VA medical records which are in existence are constructively of record and the failure of the RO or the Board to consider any such pertinent records might constitute clear and unmistakable error, even though such evidence was not actually in the record assembled for appellate review. § 3 of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) to be codified at 38 U.S.C.A. § 5103A(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); VAOPGCPREC 12-95. In circumstances such as these, the Board will not speculate as to the probative value, if any, of VA medical records not on file. Consequently, the Board concludes that a remand is necessary to follow-up on the veteran's account of being prescribed ibuprofen by VA in the early 1990s. The Board also notes that even if the veteran was prescribed ibuprofen by VA, while it apparent that there is some evidence of nonsteroidal anti-inflammatory medication as a cause of his upper gastrointestinal bleeding, the evidence also suggests that there may be multiple etiologies for past episodes of bleeding and it is unclear whether the veteran has a current gastrointestinal disability due to such treatment. Moreover, even if the alleged treatment did result in additional disability, there is no opinion that addresses the question of whether it was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part, or that it was an event that was not reasonably foreseeable. See 38 U.S.C.A. § 1151 (as amended effective October 1, 1997). When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Therefore, if additional records are obtained by the RO which confirm that the veteran was prescribed ibuprofen by VA in the early 1990s, then the veteran should be scheduled for an examination to determine whether this treatment resulted in an additional disability that would warrant compensation pursuant to 38 U.S.C.A. § 1151. The veteran is hereby informed that, should an examination be necessary, 38 C.F.R. § 3.326(a) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. Further, the provisions of 38 C.F.R. § 3.655(a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken. At (b) it is provided that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. For the reasons stated above, this case is REMANDED for the following: 1. The RO should obtain the names and addresses of all medical care providers who have treated the veteran for stomach and intestine problems. After securing any necessary release, the RO should obtain those records not on file. Of particular importance, the RO should follow-up on the veteran's account of being prescribed ibuprofen by VA in the early 1990s. 2. The RO must review the claims file and ensure that all notification and development action required by the VCAA is completed. In particular, the RO should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act (to be codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107) are fully complied with and satisfied. 3. If the RO obtains additional medical records which confirm that the veteran was prescribed ibuprofen, or any other NSAID, by VA prior to April 1991, then the veteran should be scheduled for an examination to determine the nature and etiology of any current, chronic disability of the stomach and/or intestines which may be present. The claims folder should be made available to the examiner for review before the examination. The examiner should express an opinion as to whether it is as likely as not (50 percent or greater probability) that the ibuprofen prescribed to the veteran, including the amount thereof, was the proximate cause of the veteran developing GI bleeding in April 1991 and/or any current stomach or intestine disability. If so, the examiner should express an opinion as to whether it is as likely as not that prescribing the ibuprofen was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault, or that it was an event that was not reasonably foreseeable. If the examiner cannot provide the requested opinion(s) without resorting to speculation, it should be so stated. 4. Thereafter, the RO should review the claims folder to ensure that the foregoing requested development has been completed. In particular, the RO should review the examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, the RO should implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing any additional development deemed necessary, the RO should readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefit requested on appeal is not granted to the veteran's satisfaction, the veteran and his representative should be furnished a Supplemental Statement of the Case and an opportunity to respond. By this remand, the Board intimates no opinion as to any final outcome warranted. The veteran and his representative are free to submit any additional evidence and argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until he is notified. No action is required of the veteran until he is notified. R. F. WILLIAMS Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), 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) (2000).