Citation Nr: 1327272	
Decision Date: 08/26/13    Archive Date: 08/29/13

DOCKET NO.  07-28 041A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for additional right shoulder disability due to VA medical treatment (physical therapy) in October 2008.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. G. Mazzucchelli, Counsel








INTRODUCTION

The Veteran, who is the appellant, served on active duty from August 1959 to March 1967.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in June 2010 of a Department of Veterans Affairs (VA) Regional Office (RO).  

In August 2012, the Board remanded the claim for further development. 

The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC.  


REMAND

Pursuant to the Board's remand, a VA examination was conducted in September 2012.  The VA examiner referred to evidence not in the file and which is otherwise unavailable to the Board.

Also the VA examiner's opinion is inadequate to decide the question of additional right shoulder disability as a result of VA medical treatment and the question of an event not reasonably foreseeable.

Accordingly, the case is REMANDED for the following action:

1.  Obtain the report of X-ray of the right shoulder in December 1997, referred to by the VA examiner in September 2012.  The source of which was "JBVA remote data/Vista Web CPRS." 



2.  Arrange to have the Veteran's file reviewed by a VA examiner, who has not previously examined the Veteran, to determine: 

a).  Whether the Veteran has additional disability resulting from the physical therapy by VA in October 2008?  

In formulating an opinion, the VA examiner is asked to address the following:

i.  Is there evidence by X-ray or clinical finding of right shoulder pathology, including rotator cuff pathology, before physical therapy by VA in October 2008? 

ii.  Would physical therapy by VA in October 2008 cause the findings shown by MRI in December 2008, namely, changes suggestive of a partial tear or tendinitis in the supraspinatus tendon, biceps tenosynovitis, or degenerative changes at the acromioclavicular joint and the humeral head. 

b).  If, and only if, the Veteran did incur additional disability due to physical therapy by VA in October 2008, was the additional disability, please identified the additional disability, caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the physical therapy.

That is VA failed to exercise the degree of care that would be expected of a reasonable health care provider?   

c).  If, and only if, the Veteran did incur additional disability due to VA's physical therapy in October 2008, and if the additional disability was not due to fault on the part of VA, was the additional disability an event not reasonably foreseeable, that is, the additional disability was one that a reasonable health-care provider would not have considered to be an ordinary risk of the treatment, here physical therapy, provided? 

3.  After the above development, adjudicate the claim.  If the benefit is denied, 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).

The 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).