Citation Nr: 0606426 Decision Date: 03/06/06 Archive Date: 03/14/06 DOCKET NO. 01-00 068A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to compensation under 38 U.S.C. § 1151 for additional disability, to include abdominal scarring, stomach problems, hernia, and left-sided nerve damage, claimed as due to treatment of the veteran's Crohn's disease by the Department of Veterans Affairs. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Dillon, Counsel INTRODUCTION The veteran served on active duty from February 1967 to November 1969. This matter arises before the Board of Veterans' Appeals (Board) on appeal from a November 2000 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. REMAND The veteran filed his claim in December 1999. Effective for claims filed on or after October 1, 1997, section 422(a) of Public Law 104-204, 110 Stat. 2874, 2926 (1996), amended 38 U.S.C. 1151 to authorize an award of compensation or DIC for a veteran's "qualifying additional disability" or "qualifying death." Under 38 U.S.C. 1151, as amended, an additional disability or death qualifies for compensation or DIC if it (1) was not the result of the veteran's willful misconduct; (2) was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA, either by a VA employee or in a VA facility; and (3) was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the care, treatment, or examination, or by an event not reasonably foreseeable. In this case, A VA medical opinion is warranted to address the medical questions set forth above. Although the Board previously requested a medical opinion in this regard, the resulting May 2003 VA examination report is wholly inadequate, as it does not include discussion that specifically addresses the criteria for a claim under section 1151. Effective September 2, 2004, the final rules implementing the amendments to 38 U.S.C. § 1151 were published. 69 Federal Register 46433 (codified at 38 C.F.R. § 3.361). The RO has not documented its consideration of 38 C.F.R. § 3.361 (2005), and this too should be accomplished on remand. In view of the foregoing discussion, the case is remanded for the following actions: 1. The RO must arrange for a physician with appropriate expertise to review the veteran's claims file and provide an opinion, with supporting rationale, as to whether the veteran has any additional disability as a result of VA treatment for his Crohn's disease. If no additional disability is found, that fact must be stated. If additional disability and a causal connection are found, the physician must comment and provide supporting rationale, on whether any additional disability was the result of VA carelessness, negligence, or similar instance of fault or whether such disability was an event that was not reasonably foreseeable. The physician's rationale must discuss such factors as the veteran's condition immediately before and after the treatment in question, actual causation, whether there was a continuance or natural progress of a disease or injury, the degree of care involved, and the level of risk for the treatment provided. The report prepared must be typed. If the reviewing physician determines that physical examination and/or diagnostic testing of the veteran is necessary, such must be scheduled. A typed report must be prepared and associated with the claims file. 2. If an examination of the veteran is necessary, the RO must notify the veteran that it is his responsibility to report for the above noted examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2005). In the event that the veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 3. The RO must readjudicate the claim on appeal, with application of all appropriate laws and regulations and consideration of any additional information obtained as a result of this remand. The RO must document its consideration of the September 2004 regulatory revisions for adjudicating section 1151 claims. If the decision remains adverse to the veteran, the RO must furnish him and his representative a Supplemental Statement of the Case and afford a reasonable period of time within which to respond thereto. The veteran 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). _________________________________________________ JOY A. MCDONALD 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) (2005).