Citation Nr: 1327615 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 09-28 006 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability, to include a heart disorder, due to VA medical treatment for subacute bacterial endocarditis streptococcus sanguis, from May 1997 to June 1997. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from May 1945 to December 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision in December 2008 by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was receiving in February 2009; a statement of the case was issued in July 2009; and a substantive appeal was timely received in July 2009. In April 2012, the Veteran withdrew his request for a Board hearing. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. This matter was previously before the Board in June 2012, at which time it was remanded for further development. 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 appellant if further action is required. REMAND The Veteran contends that he has a heart disorder, specifically mitral valve regurgitation (i.e., a heart murmur), due to VA medical treatment from May 1997 to June 1997 for subacute bacterial endocarditis Streptococcus sanguis. He seeks entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for resulting additional disability. The Board briefly notes that service connection is currently in effect for hypertension and coronary artery disease. The Veteran's claim was remanded by the Board in June 2012 for the purpose of obtaining a VA medical opinion. The VA examiner was asked to answer the following (summarized from the June 2012 remand directives): (1) Does the Veteran have additional disability, to include mitral valve regurgitation or other heart conditions, resulting from VA medical treatment; (2) If there is additional disability, was it caused by carelessness, negligence, lack of proper skill, or similar instance in furnishing treatment from May 1997 to June 1997, and comment on the Veteran's contentions that VA was slow in providing treatment for bacterial endocarditis; and (3) If VA exercised the degree of care that would be expected of a reasonable health-care provider in treating the Veteran, was the additional disability due to an event not reasonably foreseeable? The requested opinion was obtained in April 2013. The VA examiner stated that there was no evidence of careless, negligence, lack of proper skill or similar fault on part of the VA; that the Veteran's diagnosis had been confirmed with blood cultures and treated with an appropriate agent for the proper length of time with resolution of the infection in a successful manner; and that his pre-existing heart murmur was a risk factor for developing the infection. (Emphasis added). However, the record also contains two private treatment records, dated in July 2000 and August 2001, which expressly note that the Veteran developed "severe mitral valve regurgitation" subsequent to, or as a result of bacterial endocarditis. See, e.g., Tidewater Heart Specialists, and Sentra Hampton General Hospital Treatment Records. There is no indication that the April 2013 VA examiner specifically considered these private treatment records in rendering her opinion that the Veteran's heart murmur pre-existed the 1997 VA treatment for endocarditis. It is imperative that this conflicting medical evidence is reconciled by a medical expert; the claim is thus remanded for the purpose of obtaining an addendum opinion which specifically considers above-noted private medical evidence. See Colvin v. Derwinski, Vet. App. 171, 175 (1991) (holding that the Board is not competent to substitute its own opinion for that of a medical expert). 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. Forward the claims file, including a copy of this remand, to the examiner who conducted the April 2013 VA heart conditions examination. If this examiner is not available, send the claims file and a copy of this remand to another appropriate examiner to address the above opinion request. If it is determined that another examination is necessary such should be scheduled. The examiner must provide a supporting rational for the following opinions: (i) The examiner is asked to specifically review the private treatment record from Tidewater Heart Specialists, dated in July 2000, which notes that the Veteran was diagnosed with subacute bacterial endocarditis with streptococcus sanguis in May 1997 at the Hampton VA Hospital and that he was "successfully treated with antibiotic therapy. However, he did develop severe mitral regurgitation..." (ii) The examiner is also asked to specifically review the private treatment record from Sentra Hampton General Hospital, dated in August 2001, which also notes that the Veteran was diagnosed with subacute bacterial endocarditis due to a streptococcus sanguis infection at the Hampton VA Hospital in 1997 and that he was "successfully treated with antibiotic therapy; however, as a result, he has developed a chronic, severe mitral regurgitation." (iii) Thereafter, the examiner should clarify whether the July 2000 and August 2001 private medical records outlined above (which note development of severe mitral regurgitation subsequent to/as a result of endocarditis in 1997) would change any aspect of her previous opinion rendered in April 2013. (iv) If the April 2013 opinion remains unchanged, the examiner should provide a full explanation for such conclusion. In doing so, the examiner should specifically address whether Veteran's severe mitral valve regurgitation/heart murmur pre-existed his May 1997 to June 1997 VA treatment for bacterial endocarditis streptococcus, and if so, provide a complete explanation for this conclusion, to include reconciliation of the conflicting private medical evidence outlined above. (v) If, on the other hand, the examiner determines that the severe mitral regurgitation/heart murmur did not pre-exist VA treatment for bacterial endocarditis from May 1997 to June 1997, the examiner should opine as to whether the Veteran has additional disability (i.e., in the form of severe mitral regurgitation/heart murmur) resulting from VA medical treatment from May 1997 to June 1997 for bacterial endocarditis streptococcus, and if so, whether it was: (a) Caused by carelessness, negligence, lack of proper skill or similar instance of fault on the part of VA in furnishing the treatment from May 1997 to June 1997. In other words, did VA fail to exercise the degree of care that would be expected of a reasonable health-care provider? In so finding, the examiner is asked to comment on the Veteran's contention that VA was slow in providing treatment for bacterial endocarditis by not promptly diagnosing him with bacterial endocarditis streptococcus sanguis when he first complained of having an on-going fever. (b) If VA exercised the degree of care that would be expected of a reasonable health-care provider in treating the Veteran from May 1997 to June 1997, was the additional disability (i.e., severe mitral regurgitation/heart murmur) due to an event not reasonably foreseeable? An event is not reasonable foreseeable when a reasonable health-care provider would not have considered the results to be an ordinary risk of the treatment provided. In determining foreseeability, was the event the type of risk that a reasonable health-care provider would have disclosed in connection with obtaining informed consent. The examiner must provide reasons for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 2. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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). _________________________________________________ DEBORAH W. SINGLETON 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).