Citation Nr: 1212669 Decision Date: 04/06/12 Archive Date: 04/11/12 DOCKET NO. 08-04 134 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to compensation for additional disability of multiple biliary stones with status post sphincterotomy and stent with intra-operative cholangiogram with ampullary mass and removal of gall bladder, as a result of VA medical treatment involving Accutane for skin disorder, under the provisions of 38 U.S.C.A. § 1151. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from April 1984 to April 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which denied the benefits sought. The Veteran appealed from a June 2007 rating decision as to the 38 U.S.C.A. § 1151 claim, and from a July 2008 rating decision as to the TDIU claim. In August 2011 the Veteran testified before the undersigned Acting Veterans Law Judge during a Travel Board hearing at the RO. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND For the reasons outlined below, a remand is necessary for purposes of further development with respect to the Veteran's claims of entitlement to compensation for additional disability under the provisions of 38 U.S.C.A. § 1151, and entitlement to TDIU. With respect to the 38 U.S.C.A. § 1151 claim, the Veteran claims entitlement to compensation under that provision for qualifying additional disability of multiple biliary stones with status post sphincterotomy and stent with intra-operative cholangiogram with ampullary mass and removal of gall bladder. As reflected in testimony at the August 2011 hearing before the Board, and in a statement received at that time and dated in February 2006, the Veteran maintains that VA Accutane treatment for the service-connected skin disorder resulted in the claimed additional disability as a result of negligence on the part of VA providers in the following way. The Veteran claims that in light of the Veteran's gallbladder condition known to VA treatment providers in June 2004, but not to her prior to April 2005, VA was negligent in its use of Accutane (Isotretinoin) to treat the Veteran's service-connected acne vulgaris with hydradenitis suppurative. She maintains that the Accutane has a known side effect of aggravating cholelithiasis, and that her VA personal physician nevertheless allowed her to be treated with Accutane for an extended period of time knowing of her preexisting cholelithiasis condition. She maintains that the Accutane treatment resulted in an aggravation of the gallbladder condition, ultimately resulting in the additional disability claimed. She maintains that Accutane treatment includes a known risk factor that gallstones may result due to an increased level of triglycerides and cholesterol caused by Accutane use. She reported that the VA providers began treating her with Accutane in August 2004, which was after VA diagnostic testing in June 2004 showed gallstones were then present. She contends that the use of Accutane beginning in August 2004 resulted in aggravation of the gallbladder condition that was discovered earlier in June 2004, and that this resulted in the additional disability and constituted negligence on the part of VA. Under 38 U.S.C.A. § 1151 (West 2002), controlling laws and regulations provide that in order to warrant compensation the Veteran must demonstrate that the VA hospital care, medical or surgical treatment, or examination in question resulted in an additional disability and that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing such care, treatment, or examination, or that the proximate cause of the additional disability was an event that was not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002). In determining whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after such care or treatment. 38 C.F.R. § 3.361(b) (2011). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1) (2011). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2) (2011). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's "additional disability" or death, it must be shown that the hospital care or medical or surgical treatment actually caused the veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. 38 C.F.R. § 3.361(d)(1) (2011). In this regard, determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32 (2011). Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1) (2011). The determination of whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether 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 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). As discussed above, the Veteran's claim is that VA providers negligently treated her skin disability with Accutane, beginning in August 2004, while knowing she had a gallstone condition of which they did not notify her until April 2005; and the Accutane treatment aggravated the gallstone condition resulting in the additional disability of multiple biliary stones with status post sphincterotomy and stent with intro operative cholangiogram with ampullary mass and removal of gall bladder. The medical evidence on file includes a VA treatment record titled correspondence-patient test results, dated June 28, 2004, which indicates that the VA provider, whom the Veteran identified as her treating physician, sent her a letter with notice of echogram results of gallstones. This reference to a notice letter also stated that the gallstones may have been the cause of abdominal pain. In the indicated correspondence, the provider told the Veteran to notify him if the symptom persisted and she wanted to have surgery to remove the gallbladder. He further notified the Veteran that she would receive a letter around November 4, 2004 reminding her to schedule a follow up appointment. The file does not contain a copy of the actual letter itself. The next VA treatment record on file, dated April 14, 2005, contains list of interval history referencing that the Veteran had been seen: in March 2005 with symptoms/ complaints of severe epigastric pain in the abdomen and fever and chills; on April 13, 2005 with lab findings of elevated fasting glucose; and the day before for treatment by dermatology. The April 14, 2005 VA treatment report contains impressions, including (1) abdominal pain, ?symptomatic cholelithiasis; (2) elevated fasting glucose; (3) Elevated TG (triglycerides) March 2005 occurred after being on Accutane; and (4) hydradenitis suppurative, taking Accutane from Dermatology. The Veteran presented to the VA emergency department on April 16, 2005 with complaints of nausea and vomiting for the past three weeks, and right upper quadrant pain off and for the last year, and progressively worse with persistent pain in the last week. An April 16, 2005 VA Surgery Consult report noted that the Veteran had a history of chronic abdominal pain, and epigastric pain over the past year. The report noted the following. The Veteran had a right upper quadrant ultrasound one year ago that showed small gallstones in the gallbladder, but the Veteran "was only just informed of the results of this ultrasound two days ago" when she visited her VA personal medical doctor. She had been taking Vicodin and soma over the past year to alleviate her abdominal pain, which was excruciating. She came to the emergency room presently because she could not wait for a general surgery consult. The provider recorded that it was notable that the Veteran had a recent history of taking Accutane for her severe acne, which she was on for five months. VA treatment records show that the Veteran was then hospitalized from April 16 to May 2, 2005 in treatment of a primary diagnosis of Choledocholithasis (gallstones in the bile ducts), Symptomatic Cholecystitis (irritated gallbladder); and a secondary diagnosis of Cholelithiasis (gallstones in the gallbladder). She was admitted for chronic choledocholithiasis, cholelithiasis, and symptoms of acute or chronic cholecystitis. During hospitalization she underwent laparoscopic cholecystectomy with intra-operative cholangiogram that revealed gallstone at the junction of the cystic and common hepatic duct, and questionable stone in the ampulla. The post operative course was uncomplicated, and the liver function tests improved. At discharge the Veteran's condition was improving and recovery was expected. She was fully ambulatory and diet was regular. Review of the record reflects that the Veteran has not been afforded a VA examination that provides a responsive etiological opinion on this claim as to whether the case meets the criteria under 38 U.S.C.A. § 1151 as outlined above to warrant compensation for additional disability resulting from VA medical treatment. Therefore, following a thorough review of the entire claims folder, such examination should be accomplished on remand. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, it appears that some VA medical records are missing, including VA Dermatology Department medical records referenced in the discussion above pertaining to treatment in 2004 and 2005 at the VA medical facility in Loma Linda, California. Such records are material to the Veteran's claim and should be obtained prior to examination. With respect to the Veteran's TDIU claim, the Veteran meets the combined schedular rating for TDIU under 38 C.F.R. § 4.16(a) (2011). See also 38 C.F.R. § 4.25 (2011). Pursuant to VA's duty to assist, VA must assist a claimant in obtaining evidence necessary to substantiate a claim. 8 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2011). In a November 2007 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran reported that she last worked full time in March 2005 because she became too disabled to work due to service-connected disability. Because she is unemployed and her service-connected disabilities satisfy the percentage requirements set forth in 38 C.F.R. § 4.16(a), the Board finds that VA must obtain a medical opinion to determine whether it is at least as likely as not that her service-connected disabilities render her unable to secure or follow a substantially gainful occupation. Such an opinion is necessary to adjudicate this claim. None of the VA examination reports on file adequately address the question of whether it is at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of her service-connected disabilities, either alone or in the aggregate, taking into consideration her level of education, special training, and previous work experience, but not her age or any impairment caused by nonservice-connected disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2010). In this regard, the Board notes that unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account this Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer). Thus, the Board has no discretion and must remand this matter to afford the Veteran a VA examination, and the examination report should address the above inquiry. See 38 U.S.C.A. § 5103A; see also Colayong v. West, 12 Vet. App. 524, 538-40 (1999); Friscia v. Brown, 7 Vet. App. at 297. Pertinent private and VA medical records may be outstanding and not contained in the claims file. The RO must take appropriate steps to obtain any such records not on file, including any VA records contained in the VA computerized patient record system. On remand the RO must associate any pertinent outstanding records with the claims folder prior to any examination. Accordingly, the case is REMANDED for the following action: 1. Take appropriate measures to obtain copies of any outstanding records of pertinent VA or private medical treatment, including any such VA records contained in the VA computerized patient record system, to specifically include all VA Dermatology Department (at the Loma Linda VA medical facility) treatment records dated in 2004 and thereafter, and outstanding records from the Veteran's treating VA personal physician dated in 2004 and thereafter. This should include any and all consent forms signed by the Veteran in 2004 and 2005. All outstanding VA treatment records obtained should be associated with the claims file. If these records are determined not to exist or to be unavailable, a formal finding to this effect should be made and placed in the claims folder. 2. Notify the Veteran that she may submit statements from her and others that impact on her claim that VA negligently provided treatment resulting in her gallbladder condition; and statements describing the impact of her service-connected disorders on her ability or inability to work or to obtain and retain employment. 3. After completion of the above development, schedule the Veteran for VA examinations to determine (1) whether the case meets the criteria under 38 U.S.C.A. § 1151 to warrant compensation for additional disability resulting from VA medical treatment; and (2) the impact of the Veteran's service-connected disorders on her ability to obtain and retain employment. The claims folder must be provided to and reviewed by the examiner in conjunction with examination. The examiner must provide a complete rationale for all conclusions, which should be set forth in a legible report. A. 38 U.S.C.A. § 1151 examination: Examination should include all indicated studies (and all findings should be reported in detail) necessary and provide an opinion as to the following questions: i) Is it at least as likely as not that VA treatment to include Accutane treatment of the Veteran's skin condition in 2004 and 2005 or any other VA treatment during this period caused any additional disability, to include as claimed: aggravation of an existing cholelithiasis condition resulting in residuals including multiple biliary stones with status post sphincterotomy and stent with intra-operative cholangiogram with ampullary mass and removal of gall bladder? (ii) If the answer to the above question is yes, then identify the additional disability, and provide an opinion as to whether such additional disability was either: (a) caused by VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in furnishing this medical treatment; that is, VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent; or (b) the result of an event that was not reasonably foreseeable; that is, was the event one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided, or was the risk of such event the type of risk that a reasonable health care provider would not have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. Comment on the probability of whether the Veteran received or did not receive a notice letter in about June 2004 referenced in a June 28, 2004 VA treatment record titled correspondence-patient test results. If the examiner finds that they are unable to provide any portion of the requested opinion without resorting to speculation, they should give the reasons and bases for this determination and identify any outstanding evidence that may enable them to provide the requested opinions. B. TDIU: After the completion of the 38 U.S.C.A. § 1151 examination, appropriately examine the Veteran regarding the claim of entitlement to a TDIU. The examiner should conduct any appropriate tests and studies required. The examiner must opine as to whether it is at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of her service-connected disabilities, either alone or in the aggregate, taking into consideration her level of education, special training, and previous work experience, but not her age or any impairment caused by nonservice-connected disabilities. For this purpose, notify the examiner that the Veteran's service-connected disabilities currently consist of: i) Acne vulgaris with hydradenitis suppurative; (ii) Dysthymic disorder, chronic, associated with neck condition; (iii) Chronic mid and low back musculoligamentous strain; (iv) Neck Condition (cervical degenerative disc disease); (v) Radiculopathy, lower extremity, right; and (vi) Radiculopathy, lower extremity, left. If in the opinion requested for the 38 U.S.C.A. § 1151 examination above, the examiner finds that it is at least as likely as not that additional disability resulted from VA treatment, and that the proximate cause of the additional disability was carelessness, negligence, etcetera, in furnishing such treatment, or that the proximate cause of the additional disability was an event that was not reasonably foreseeable, then in providing the above opinion as to TDIU, the examiner should include consideration of the additional disability along with the above listed service-connected disabilities. If not, then only the currently service connected disabilities can be considered in rendering the opinion as to the Veteran's employability. If the examiner finds that they are unable to provide any portion of the requested opinion without resorting to speculation, they should give the reasons and bases for this determination and identify any outstanding evidence that may enable them to provide the requested opinions. 4. Then readjudicate the claims on appeal. If a claim remains denied, issue the Veteran a Supplemental Statement of the Case. Allow an appropriate period of time for response. The case should then be returned to the Board for further appellate consideration, if otherwise in order. 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). 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 (CONTINUED ON NEXT PAGE) 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. 2011). _________________________________________________ JOHN L. PRICHARD Acting 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) (2011).