Citation Nr: 1549976 Decision Date: 11/27/15 Archive Date: 12/04/15 DOCKET NO. 15-29 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for peptic ulcer disease, intestinal bleeding, and iron deficiency anemia claimed as due to VA prescribed medication. 2. Entitlement to an increased rating for hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tracie N. Wesner, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran served on active duty from December 1956 to October 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2013 and January 2015 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND 1151 Claim With regard to the Veteran's claim for compensation under § 1151, the Board finds that remand is in order to obtain additional VA documents and obtain an addendum medical opinion. The Veteran alleges that his gastrointestinal disorders, including peptic ulcer disease and intestinal bleeding, as well as his iron deficiency anemia, were caused by or became worse as a result of his use of the medication Celebrex, which was prescribed by his VA physician. The Veteran asserts that VA was negligent in prescribing Celebrex from March 2000 to December 2003, by not telling him the dangers of Celebrex, not monitoring him while he was taking the medication and failing to provide proper care in follow up to his diagnosed gastrointestinal bleed in December 2003. See August 2010, January 2013 and December 2013 Written Statements. The Board notes that although most of the VA medical records concerning the Veteran's care have been associated with the claims file, his VA treatment records from the time he was initially prescribed Celebrex in March 2000 and continuing through that year have not been associated with the claims file. As these documents are relevant to his claims, they must be obtained. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Additionally, the Board finds that an addendum medical opinion should be obtained. A VA medical opinion concerning his claim was obtained in August 2015. The Board notes that the August 2015 VA examination report is unclear as to whether the Veteran's claimed additional disability was reasonably foreseeable. Specifically, although the VA examiner opined that it is unlikely that the severe adverse reactions experienced by the Veteran could have been foreseen by a reasonable healthcare provider during the time of his initial medical treatment with Celebrex, the VA examiner also noted that the Celebrex U.S. medication boxed warning states that NSAIDS may increase risk of serious gastrointestinal ulceration, bleeding and perforation (may be fatal). This evidence suggests that serious gastrointestinal complications are a reasonably foreseeable, ordinary risk of the prescribed medication. See 38 C.F.R. § 3.361(d)(2)(2015) (stating that in order to be "not reasonably foreseeable," the event "must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided" and that in determining whether the an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of § 17.32). In light of this, the Board finds that clarification is in order. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board further finds that an addendum medical opinion is necessary to address the issue of whether the Veteran's claimed additional disability is due to the failure on the part of VA to timely diagnose, treat or provide follow up care for his claimed disabilities. As noted above, the Veteran asserts that VA was negligent in failing to provide him with appropriate treatment after he was diagnosed with gastrointestinal bleeding in December 2003. The August 2015 VA examiner opined that it was less likely than not that the Veteran's claimed additional disability is due to the failure on the part of VA to timely diagnose and/or properly treat his claimed disabilities; however, no rationale was provided for this opinion. On remand, an addendum opinion should be obtained. See id. Increased Rating for Hearing Loss The Veteran's appeal with regard to his increased rating for hearing loss must be remanded for the issuance of a Statement of the Case (SOC). In a January 2015 rating decision, the RO continued the Veteran's 50 percent rating for hearing loss. In February 2015, the Veteran submitted a Notice of Disagreement (NOD) with the evaluation assigned. The RO has not issued an SOC. As such, this issue must be remanded for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain all outstanding VA records concerning the Veteran's treatment at the VA Medical Center in Columbia from January 1, 2000 to January 1, 2001. 2. Ask the Veteran if there are any other records he would like to have considered in connection with his claim. Any identified records for which authorization is provided should be sought. 3. After receiving the documents identified above, obtain an addendum medical opinion. The claims file should be returned to the VA examiner who provided the August 2015 examination report, if available. If that examiner is not available, an opinion should be obtained from another qualified examiner. The VA examiner should provide an opinion as to the following: (a) whether the Veteran's claimed additional disability is an event that was not reasonably foreseeable (i.e., the type of risk that a reasonable health care provider would not have disclosed in informed consent procedures), OR whether the claimed additional disability is an ordinary risk of the medication prescribed. In rendering an opinion, the examiner should specifically address the evidence showing that the Celebrex U.S. medication boxed warning states that use of NSAIDS may increase risk of serious gastrointestinal ulceration, bleeding and perforation (may be fatal). See August 2015 VA Examination Report. (b) whether the Veteran's claimed additional disability is due to the failure on the part of VA to timely diagnose, treat or provide follow up care for his claimed disabilities. In reaching an opinion, the examiner should consider the Veteran's lay statements as contained in his August 2010, January 2013 and December 2013 written statements. All findings and conclusions should be supported with complete rationale, and review of the file should be noted in the report. If the reviewing clinician cannot provide the requested opinion without resorting to speculation, it should be so stated, and he or she should provide the reasons why an opinion would require speculation. 4. Issue to the Veteran and his representative an SOC regarding the issue of entitlement to an increased rating for hearing loss and advise them of the requirements to timely perfect an appeal. 5. Then readjudicate the issue of entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151. If any benefit sought remains denied, furnish the Veteran and his representative with a Supplemental SOC and afford them the opportunity to respond before the file is returned to the Board for further consideration. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).