Citation Nr: 1138205 Decision Date: 10/13/11 Archive Date: 10/19/11 DOCKET NO. 09-09 027 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to a compensation under 38 U.S.C.A. § 1151 for a chronic disability manifested by pain, to include testicle pain, as a result of surgeries performed at Department of Veterans Affairs (VA) medical centers in June 1992 and May 2007. REPRESENTATION Appellant represented by: Rafael Modet, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Associate Counsel INTRODUCTION The Veteran had active military service from September 1971 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) from a November 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Reno, Nevada. In March 2010, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in September 2010 when the Board denied the Veteran's claim. The Veteran appealed the September 2010 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in May 2011, the Court vacated the Board's September 2010 decision and remanded the case to the Board for development consistent with a Joint Motion for Remand (JMR). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The evidence of record contains conflicting information as to whether the Veteran has an additional disability due to June 1992 (left hemicolectomy) and May 2007 (hernia repair) VA surgical procedures. Therefore, a VA examination and opinion is warranted to address this issue. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate practitioner to obtain an opinion as to whether the Veteran has an additional disability due to June 1992 (left hemicolectomy) and May 2007 (hernia repair) VA surgical procedures. The practitioner should review the entire claims file, and such review should be noted in his or her opinion. In particular, the examiner should note the January 2006 opinion of Dr. Craig Bash, and the January 2006 VA examiner's opinion in which he repeatedly stated his disagreement with Dr. Bash's conclusions, but agreed that the Veteran's "GI symptoms are a result of his Meckel's diverticulum and its therapy." If, and only if, the medical examiner opines that the Veteran has an additional disability, he or she must address 1) whether the disability is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA practitioner(s); 2) whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider; and 3) whether the disability is the result of an event that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. The clinician is requested to provide a complete rationale for his or her opinion(s), as a matter of medical probability, based on his or her clinical experience, medical expertise, and established medical principles. If the examiner cannot provide the requested opinion(s) without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. After undertaking any other development deemed appropriate, the RO should readjudicate the issue on appeal. If the benefit sought on appeal is not granted, the RO should issue a supplemental statement of the case and provide the Veteran and his representative with an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter 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 Supp. 2010). _________________________________________________ U.R. POWELL 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) (2010).