Citation Nr: 1321345 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 09-00 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to compensation under 38 U.S.C.A. § 1151 for a stroke and stroke residuals. 2. Entitlement to compensation under 38 U.S.C.A. § 1151 for a right shoulder disability, characterized as a right shoulder rotator cuff tear. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty service from April 1959 to April 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Columbia, South Carolina Regional Office (RO) of the Department of Veterans Affairs (VA). On the substantive appeal for (VA Form 9) received in January 2009, the Veteran requested a travel Board hearing. A travel Board hearing was scheduled for July 2012, for which the Veteran has did not appear. Subsequently, he has not requested a rescheduled hearing. The case will therefore be processed as though the request for a hearing had been withdrawn. 38 C.F.R. § 20.704. The Board observes that additional evidence was associated with the claims file after the RO reviewed the record in a December 2008 statement of the case (SOC). It appears that the evidence primarily relates to a claim which is not the subject of this appeal. Nevertheless, as the claims as shown on the title page are being remanded for additional development, the RO will have an opportunity to consider any additional relevant evidence. A June 2013 review of the Virtual VA electronic claims processing system does not reveal any additional evidence pertinent to the claims on appeal. 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 The present appeal involves the issues of entitlement to compensation under 38 U.S.C.A. § 1151 for a stroke and stroke residuals; and a right shoulder disability, characterized as a right shoulder rotator cuff tear. Although the Board regrets further delaying appellate review of the issues, further development is necessary with respect to these claims. The Veteran maintains that his claimed stroke/residuals and right shoulder disability were caused by, or as a result of, open heart surgery performed in at the VAMC in Decatur, Georgia in March 2005. The file contains VA medical reports dated from March 2005 to February 2006. On March 21, 2005 the Veteran underwent aortic valve repair. Upon evaluation done on the morning of March 22, 2005, it was noted that the Veteran was having some difficulty with speech as well as some difficulty following simple commands. Right-sided and facial weakness were also noted. Ultimately the symptoms were assessed as acute stroke, localized to the left frontal lobe. A March 25, 2005 record documents the Veteran's complaints of right arm pain. Also on file is a VA consent form signed by the Veteran on March 17, 2005 reflecting that the risks of aortic valve repair replacement were explained to the Veteran and that they included stroke, as well as additional complications. Private medical records include an August 2005 report of an MRI study of the right shoulder which revealed impingement syndrome, with a tendon tear and joint effusion. When seen in September 2005, the Veteran gave a history of right shoulder pain following a March 2005 cerebrovascular accident, which occurred during open heart surgery. The Veteran was treated for right rotator cuff tear in September and October 2005. The Federal Circuit noted that section 1151 delineates three prerequisites for obtaining disability compensation. First, a putative claimant must incur a "qualifying additional disability" that was not the result of his own "willful misconduct." 38 U.S.C. § 1151(a). Second, that disability must have been "caused by hospital care, medical or surgical treatment, or examination furnished the veteran" by VA or in a VA facility. Id. § 1151(a)(1). Finally, the "proximate cause" of the veteran's disability must be "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part" of VA, or "an event not reasonably foreseeable." Id. §§ 1151(a)(1)(A), 1151(a)(1)(B). Thus, section 1151 contains two causation elements-a veteran's disability must not only be "caused by" the hospital care or medical treatment he received from VA, but also must be "proximate[ly] cause[d]" by the VA's "fault" or an unforeseen "event." Id. § 1151(a)(1). In determining whether additional disability exists, the physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. See 38 C.F.R. § 3.358(b) (2012). It is also necessary to show that additional disability actually resulted from such disease, or that an injury or an aggravation of an existing disease or injury was suffered as a result of hospitalization or medical treatment and is not merely coincidental therewith. The mere fact of aggravation, alone, will not suffice to make the disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination. 38 C.F.R. § 3.358(c)(1), (2) (2012). Compensation is not payable for the necessary consequences of medical or surgical treatment properly administered with the express or implied consent of the appellant. 38 C.F.R. § 3.358(c)(3) (2012). Under the duty to assist, a medical examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with an established event, injury or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims noted that the third prong of 38 C.F.R. § 3.159(c)(4), requiring that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. Significantly, the Board observes that to date, the Veteran has not been afforded a VA examination with opinions so as to determine whether he has any additional disability claimed as a stroke/residuals and a right shoulder disability resulting from VA treatment, and whether any additional disability is due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA facility care or medical treatment. Also pertinent in this case are the issues of forseeability, and risk. Thus, with respect to these particular claims, the Board finds that a VA medical examination with an opinion is necessary for proper appellate review. See 38 C.F.R. § 3.159(4). The file contains VA records dated from March 2005 to February 2008 and from November 2008 to October 2009. The Board observes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, for the sake of completeness, the AOJ should request all outstanding records of VA evaluation, treatment and hospitalization dated from January 2004 to March 2005 (during the year prior to the medical treatment at issue); from February to November 2008 (as there is a gap in the evidence during this period); and from October 2009 forward. In addition, to ensure that all due process requirements are met, the AOJ should give the Veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal. In addition, another attempt to obtain medical records of Dr. C. dated from 2003 forward should be undertaken (see March 2006 VA Form 21-4142), as no further attempts to obtain these records have been made since 2006. The RO should also take appropriate steps, including getting any necessary authorization from the Veteran, to obtain this evidence. Accordingly, the case is REMANDED for the following actions 1. The Veteran should be given an opportunity to identify or submit, any additional records or evidence relating to his 38 U.S.C.A. § 1151 claims. All reasonable attempts should be made to obtain any identified records. If any records/evidence cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Again attempt to obtain private medical records of Dr. C. dated from 2003 forward (see March 2006 VA Form 21-4142). 3. Request all outstanding VA treatment records, as well as hospitalization and examination reports, dated from January 2004 to March 2005 (during the year prior to the medical treatment at issue); from February to November 2008 (as there is a gap in the evidence during this period); and from October 2009 forward, for inclusion in the paper or virtual VA file, as appropriate. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4 After obtaining all outstanding records, the AOJ shall provide the claims file to an appropriately qualified VA examiner to review the claims file and provide opinions regarding the following matters. The need to examine the Veteran is left to the discretion of the medical professional selected to offer the opinions. (a) Does the Veteran at least as likely as not have additional disability, claimed as (i) a stroke/stroke residuals and (ii) a right shoulder disability/rotator cuff tear; as a result of treatment provided by VA in March 2005, at which time the Veteran underwent aortic valve repair? (b) If additional disability is shown, was such additional disability the result of, or caused by, a lack of proper care or negligent treatment on the part of VA caregivers? In other words, did any action or inaction by VA caregivers cause additional disability or constitute carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault? If so, did VA fail to exercise the degree of care that would be expected of a reasonable health care provider? (c) If additional disability is shown, was the cause of the additional disability(ies) an event not reasonably foreseeable? In this regard the consent form signed by the Veteran on March 17, 2005 is relevant and should be considered and discussed. In addressing the foregoing, the examiner must acknowledge and consider both the lay and clinical evidence pertaining to these matters. The examiner shall provide clear and complete medical reasoning and rationale (i.e. a discussion of the facts and the medical principles involved) for all requested opinions and findings, in a legible report. 5. The AOJ will then readjudicate the Veteran's claims of entitlement to compensation, under the provisions of 38 U.S.C.A. § 1151, for both claimed stroke/stroke residuals, and a right shoulder disability/right rotator cuff tear, to include consideration of all evidence added to the file since the issuance of the December 2008 SOC. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). _________________________________________________ MARJORIE A. AUER 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).