Citation Nr: 1308065 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 99-19 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for additional left arm disability due to VA medical treatment in October 1998. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from August 1966 to August 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in May 1999 of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2003 and in February 2005, the Board remanded the claim for additional development. In a decision in April 2006, the Board denied the claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an order in December 2007, the Court granted the parties' Joint Motion to Remand, and remanded the case to the Board for action consistent with the Joint Motion. In August 2009, the Board remanded the case for additional development consistent with the parties' Joint Motion. After the additional development was completed, the Board denied the claim in May 2011. The Veteran appealed the Board's decision to the Court. In a Memorandum Decision in July 2012, the Court vacated the Board's May 2011 decision, and remanded it for action consistent with the Memorandum Decision. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran seeks disability compensation pursuant to 38 U.S.C.A. § 1151 for an additional left arm disability of brachial neuritis that developed following the administration of an influenza vaccination in October 1998 at VA medical facility. The Veteran asserts that the risk of acquiring a brachial neuritis was not disclosed to him prior to the administration of the influenza vaccination. He also argues that acquiring a brachial neuritis after an influenza vaccination is not a reasonably foreseeable risk of the vaccination. In its Memorandum Decision, the Court determined that the Board's decision lacked analysis of whether acquiring a brachial neuritis due to an influenza vaccination was a reasonably foreseeable event, and whether the Veteran gave informed consent based on the evidence of record. A medical opinion is necessary to properly address the matters the Court found deficient, and therefore the claim must be remanded for additional development. Accordingly, the case is REMANDED for the following action: 1. Arrange to have the Veteran's file reviewed by VA neurologist to address the following: a). Is the development of brachial neuritis, following an influenza vaccination, a risk that is considered "not reasonably foreseeable?" In formulating the opinion, the VA neurologist is asked to consider in the context of the Veteran's claim, the medicolegal term "not reasonably foreseeable" does not mean the event need not be completely unforeseeable or unimaginable, but it must be a risk that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In other words, brachial neuritis is not an ordinary risk associated with an influenza vaccination. In answering the question, the VA neurologist is asked to review the current medical literature, pertaining to a cause and effect relationship between immunization and brachial neuritis. On VA examination in July 2005, there is reference to a study that there is possibly a 1 per 100,000 patient complication rate with vaccinations. b). Whether a reasonable person would have proceeded with the influenza vaccination even if advised of the risk of developing brachial neuritis. Stated differently what are the consequences of having the influenza vaccination versus foregoing the vaccination? 3. After the requested development is completed, adjudicate the claim. If the benefit sought is denied, then furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran 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. 2012). _________________________________________________ George E. Guido Jr. 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) (2012).