Citation Nr: 1322000 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 10-22 014 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to compensation under 38 U.S.C.A. § 1151 for a chronic left rotator cuff injury with arthroscopic repair. 2. Entitlement to service connection for an acquired psychiatric disorder, claimed as anxiety and anxiousness, to include as secondary to a left shoulder disability. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 4. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a bilateral foot disorder. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from February 6, 1976 to July 22, 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In March 2012, the Veteran testified at a Travel Board hearing. A transcript of that proceeding is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board finds that there is a further VA duty to assist the Veteran in developing evidence pertinent to his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). First, the Board observes that the Veteran has filed a notice of disagreement, dated in May 2013, with the denial of service connection for a bilateral foot disorder dated in September 2012. The Board notes that this issue had been previously denied in an April 2008 rating decision. It does not appear that a Statement of the Case has been issued on this issue. Accordingly, the Board is required to remand this issue to the RO for the issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999). After the RO has issued the SOC, the claim should be returned to the Board only if the Veteran perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Under 38 U.S.C.A. § 1151, compensation shall be awarded for a qualifying additional disability of a veteran in the same manner as if such additional disability were service-connected. For purposes of this section, a disability is a qualifying additional disability if the disability was not the result of the veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in a 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. See 38 C.F.R. § 3.361(c)(1). 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. See 38 C.F.R. § 3.361(c)(2). 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, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability; 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. 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 (2012). 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. See 38 C.F.R. § 3.361(d)(1). Consent may be express or implied as specified under 38 C.F.R. § 17.32(b), as in emergency situations. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a Veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined 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. See 38 C.F.R. § 3.361(d)(2). Pursuant to the language of the aforementioned law and regulation, section 1151 claims for additional disability are treated similarly to claims for service connection. See Jones v. West, 12 Vet. App. 383 (1999); Boggs v. West, 11 Vet. App. 334 (1998). Hence, to establish entitlement, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of incurrence or aggravation of an injury as the result of hospitalization, medical or surgical treatment; and (3) medical evidence of a nexus between that asserted injury or disease and the current disability. The Veteran contends that he is entitled to benefits under section 1151 due to his left shoulder surgery in June 2008 and subsequent physical therapy at the Little Rock VA Medical Center (VAMC). The Board notes at the outset that voluminous VA treatment records have been associated with the claims file as part of the responsive documents from a request to the Social Security Administration. It is unclear, however, whether these are all of the relevant existing records concerning the Veteran's treatment at VA medical facilities. Thus, the RO/AMC must request ALL records for the Veteran from the Little Rock VAMC, to include those not electronic, on remand. Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Additionally, the Board notes that the Veteran was afforded VA examinations in August 2009 and December 2010 to consider his claim concerning his left shoulder. The Board notes that the August 2009 VA examiner seemed to indicate that the outcome of the surgery was not a foreseeable event on the part of the Veteran. The examiner went on to indicate that the Veteran could not look into the future and predict that he would have a good chance with arthroscopic repair. The Veteran contends this statement indicates that the outcome of his surgery was an unforeseeable result, as discussed under section 1151. The Board, however, observes that whether an additional disability is incurred due to an unforeseeable event is considered on the basis of the reasonable medical professional, not on the basis of the foreseeability of a lay person. The Board additionally notes that the consent for this procedure specifically indicates a risk of, "less than complete recovery of normal functions or pain relief." Also, the two VA examiners did not specifically determine whether there was an aggravation or increase in the Veteran's symptoms after the 2008 surgery and treatment. Additionally, neither of the examiners considered the Veteran's physical therapy after the 2008 shoulder surgery in their opinions. The RO/AMC should obtain an additional medical opinion concerning this theory of entitlement under section 1151. Additionally, the Board finds that the TDIU claim and claim for service connection for a psychiatric disorder, claimed as secondary to a left shoulder disability, are inextricably intertwined with the issue of service connection for a left shoulder disability. Adjudication of the TDIU issue and psychiatric issue must be deferred pending completion of the additional evidentiary development outlined above. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (when a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should undertake all actions required by 38 C.F.R. § 19.26, including issuance of a Statement of the Case, so that the Veteran may have the opportunity to complete an appeal on the issue concerning a bilateral foot disability (if he so desires) by filing a timely substantive appeal. 2. Obtain and associate with the claims file any pertinent records adequately identified by the Veteran, including ALL medical records from the Little Rock VAMC not already associated with the claims file. 3. The RO/AMC should request an addendum from the December 2010 examiner; or if he is not available, then an opinion should be provided by a different examiner. If an additional in-person examination is necessary according to the examiner, then such should be afforded the Veteran. The following require specific responses from the examiner: a) The examiner should explain whether there was an aggravation or increase in the Veteran's symptoms due to his June 2008 surgery on his left shoulder or subsequent physical therapy. b) If, and only if, this is the case, then the examiner should explain whether this was at least as likely as not due to either (a) carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA in furnishing such care or treatment or, (b) was not a reasonably foreseeable consequence of the care or treatment provided. The medical provider should fully explain the rationale for his or her conclusions in his or her report. 4. Then, the RO or the AMC should readjudicate the claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and the representative, if any, should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. 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). These claims must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JAMES L. MARCH 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).