Citation Nr: 1117540 Decision Date: 05/06/11 Archive Date: 05/17/11 DOCKET NO. 10-29 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for a seizure disorder claimed as aggravated by VA treatment. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1960 to March 1961. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Fort Harrison, Montana Department of Veterans Affairs (VA) Regional Office (RO). In February 2011, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any action on his part is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) and the regulations implementing it apply in the instant case. While the notice provisions of the VCAA appear to be satisfied, the Board is of the opinion that further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to his claim. See 38 C.F.R. § 3.159 (2010). To establish entitlement to benefits under 38 U.S.C.A. § 1151, the Veteran must show both that he has additional chronic disability caused by VA hospital care, or medical or surgical treatment (and not due to his own misconduct), and that the proximate cause of the additional disability was carelessness, lack of proper skill, error in judgment, or similar instance of fault (on the part of VA), or was an event not reasonably foreseeable. The Veteran alleges that in October 2008, while hospitalized for a seizure disorder, he was overmedicated/inappropriately medicated and as a result his seizure disorder worsened to the extent that he is no longer able to work. At the February 2011 videoconference hearing, he testified that November and December 2010 VA treatment records show he now has seizure disability of greater severity. The evidence of record includes VA records through October 25, 2010. As the Veteran alleges that VA treatment records contain pertinent medical information, and because they are constructively of record, such records must be secured. Furthermore, the Veteran has not yet been afforded a VA examination to secure a medical advisory opinion in this matter. The record reflects that he was scheduled for a VA examination in December 2010; but could not attend, as he was in an intensive care unit. While the examiner reviewed the file and provided a rather detailed opinion, that opinion was not based on examination of the Veteran or review of updated (to the present) VA treatment records. An examination to secure a medical opinion that encompasses the entire record, and addresses all medical questions raised is necessary. Accordingly, the case is REMANDED for the following: 1. The RO should secure for the record copies of the complete records of all VA treatment and/or evaluations the Veteran has received for his seizure disorder at Fort Harrison VAMC from October 25, 2010 to the present, and complete pharmacy records from his October 2008 hospitalization to the present. 2. The RO should then arrange for the Veteran to be examined by a neurologist who must obtain a complete, pertinent history from the Veteran (to include eliciting from him his allegations as to what specific additional disability (i.e., pathology, symptoms, impairment) he believes resulted from VA treatment, review his claims file (including this remand), and provide opinions responding to the following: (a) Based on the factual evidence of record does the Veteran have any additional seizure disorder disability following his October 2008 hospitalization? If so, please identify the additional pathology, symptoms and functional impairment that reflect the increase. It is requested that the response to this question considers the Veteran's specific allegations of what he believes the additional disability to be. Please also indicate whether the additional disability is due to any overmedication/inappropriate medication (please discuss the appropriateness of the medications prescribed) or is due to other factors, such as the natural progression of the underlying disease process. In addition, please indicate whether the record reflects any carelessness, negligence, lack of proper skill, error in judgment, or other similar instance of fault on the part of VA in the treatment provided during the October 2008 VA hospitalization, and also whether any additional disability is due to an event not reasonably foreseeable as a consequence of the treatment/care provided? The response to the questions posed should specifically include discussion whether clinical findings in the course of the November and December 2010 hospitalization at Fort Harrison VAMC reflect an additional level of chronic disability and discussion of the factors requiring hospitalization (i.e., whether it was due to VA's overmedication/inappropriate medication, the Veteran's noncompliance with treatment, a combination of the two, or other factors). The provider should explain the rationale for all opinions (with citations to clinical data, as appropriate). 3. The RO should then readjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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 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). _________________________________________________ GEORGE R. SENYK 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).