Citation Nr: 1330171 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 10-09 862 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a compensable rating for bilateral hearing loss. 2. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of a stroke caused by hernia surgery. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma. In his February 2010 substantive appeal (VA Form 9), the Veteran indicated that he did not wish to appear at a Board hearing before a Veterans Law Judge; however, in an attached statement his representative requested a Board hearing. As such, in September 2013, the claims file was referred to his representative for clarification regarding whether the Veteran desired a Board hearing. In a September 2013 communication, the Veteran's representative stated that the Veteran did not want to appear for a Board hearing and requested that the Board adjudicate his pending appeal. Therefore, the Board finds that there is no outstanding hearing request pending. The Board observes that additional records consisting of a June 2010 VA examination pertaining to the evaluation of the Veteran's bilateral hearing loss was associated with the claims file after the issuance of the February 2010 statement of the case. However, in September 2013, the Veteran's representative waived agency of original jurisdiction (AOJ) consideration of such evidence. 38 C.F.R. § 20.1304(c) (2013). Therefore, the Board may properly consider such newly received evidence. The Board further notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. As relevant to the instant appeal, it does not contain any additional evidence with the exception of an August 2013 Appellate Brief submitted by the Veteran's representative. The issue of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of a stroke caused by hernia surgery is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT For the entire appeal period, the Veteran's bilateral hearing loss is manifested by no worse than Level II hearing in the right ear and no worse than Level III hearing in the left ear. CONCLUSION OF LAW For the entire appeal period, the criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100, and Tables VI, VII (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a March 2008 letter, sent prior to the August 2008 rating decision, advised the Veteran of the evidence and information necessary to substantiate his increased rating claim as well as his and VA's respective responsibilities in obtaining relevant evidence and information. Additionally, such letter informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment and personnel records, as well as VA treatment records, have been obtained and considered. Additionally, the Veteran has not reported, and nor does the evidence of record show, that he is in receipt of Social Security Administration (SSA) disability benefits for his claimed disability. Therefore, VA need not attempt to obtain his SSA records. Golz v. Shinseki, 590 F.3d 1317, 1323 (2010). The Veteran has not identified any additional, outstanding records that have not been requested or obtained. Therefore, the Board finds that VA has satisfied its duty to assist in obtaining all available records. Additionally, the Veteran was afforded VA examinations in August 2007, July 2008, and June 2010 to evaluate his bilateral hearing loss. As indicated previously, although the results of the June 2010 examination were not considered by the AOJ in the February 2010 statement of the case, the Veteran's representative waived consideration of this evidence by the AOJ in correspondence received by the Board in September 2013. Neither the Veteran nor his representative has alleged that such examinations are inadequate for rating purposes. Moreover, the Board finds that the examinations are adequate to evaluate the Veteran's service-connected bilateral hearing loss as they include an interview with the Veteran, an accurate summary of the history, audiometric testing, and an ontological examination that addressed the relevant rating criteria. In this regard, the Board notes that, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. In this regard, the Board finds that the VA examiner, who examined the Veteran at all three examinations, addressed the functional effects resulting from the Veteran's bilateral hearing loss. Specifically, at the August 2007 VA examination, the examiner noted that the Veteran had difficulty hearing and understanding conversations. In July 2008, the VA examiner observed that the Veteran had difficulty understanding spoken words and subjectively perceived difficulty in communication. Finally, at the June 2010 VA examination, the examiner observed that the Veteran had difficulty understanding speech clearly, phone conversations, and 2 way radio transmissions. Therefore, the Board finds that the VA examinations of record fully describe the functional effects caused by the Veteran's bilateral hearing loss disability in accordance with Martinak, supra. As such, the Board finds that the examinations of record are adequate to adjudicate the Veteran's increased rating claim and no further examination is necessary. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The Veteran served as a U.S. Navy machinist mate with service aboard several destroyers. He is service-connected for bilateral hearing loss and is currently assigned a noncompensable rating pursuant to 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. He contends that his bilateral hearing loss is more severe than is contemplated by a noncompensable rating. In statements to examiners and in a February 2010 substantive appeal, the Veteran reported that he experienced difficulty in hearing conversation including on the telephone and over two-way radios that he used for his job as a hospital radiation technician. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86 , and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Examinations for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test and a puretone audiometric test. 38 C.F.R. § 4.85. Audiologists must describe the effects on occupational functioning and daily activities so that it can be determined if an extra-schedular evaluation may be assigned. Unlike the rating schedule for hearing loss, the extra-schedular provisions do not rely exclusively on objective test results to determine if referral is warranted. Martinak, supra. VA outpatient treatment records showed that the Veteran was issued hearing aids in October 2008. The results of the three VA audiometric examinations by the same contract audiologist are as follows: Examination Date Source Ear Puretone Threshold Average (Decibels) Speech Discrimination (Percent) Table VI Result Table VII Result 8/2007 VA R L 55 46 92 88 I II zero 7/2008 VA R L 52.5 45 94 90 I II zero 6/2010 VA R L 65 57.5 96 88 II III zero The Board notes that such examinations did not demonstrate an exceptional pattern of hearing loss. Additionally, on each examination, the audiologist noted the Veteran's history of noise exposure during and after service and his current symptoms and functional limitations. Organic ear examinations were normal. The audiologist noted that the Veteran's limitations were understanding speech clearly on the telephone and two-way radios. Based on the foregoing, the Board concludes that a compensable rating for bilateral hearing loss is not warranted at any time during the period covered by this appeal. To the extent that the Veteran contends that his hearing loss is more severe than currently evaluated, the Board observes that the Veteran, while competent to report symptoms such as difficulty understanding speech and conversations, to include on the phone and a 2 way radio, he is not competent to report that his hearing acuity is of sufficient severity to warrant a 10 percent or greater evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Despite the foregoing, the Board acknowledges the Veteran's reports of the difficulty he has in understanding speech and conversations, to include on the phone and a 2 way radio. Even after considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for a compensable evaluation are not met. See Lendenmann, supra (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered). The Board has considered whether staged ratings under Hart, supra, are appropriate for the Veteran's service-connected bilateral hearing loss; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected bilateral hearing loss with the established criteria found in the rating schedule. The Board notes that the Veteran has described the functional impairment he experiences as a result of bilateral hearing loss, to include difficulty understanding speech and conversations, to include on the phone and a 2 way radio. However, the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by Veterans with certain degrees and types of hearing disability. In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86. In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these Veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of Veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of Veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994). Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria. Consequently, the Board finds that the Veteran's bilateral hearing loss symptomatology is fully addressed by the rating criteria under which his disability is rated. There are no additional symptoms of his bilateral hearing loss that are not addressed by the rating schedule. The Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for his service-connected disability. The rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the evidence reflects that the Veteran is currently employed. Therefore, the Board finds that the issue of entitlement to a TDIU is not expressly raised by the Veteran or reasonably raised by the record and, consequently, further consideration of such is not necessary. The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for a compensable rating for his bilateral hearing loss. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his increased rating claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER A compensable rating for bilateral hearing loss is denied. REMAND Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's §1151 claim and to fulfill VA's duty to assist the Veteran. In this regard, a remand is required to obtain potentially relevant records from private medical care providers and afford the Veteran a VA examination with an opinion addressing the etiology of his left side neurologic symptoms. In a March 2007 claim, an August 2009 notice of disagreement, and a February 2010 substantive appeal, the Veteran contended that he developed additional disabilities residuals of a cerebrovascular accident including numbness in the left hand and fingers, weakness of the left arm, and drooping on the left side of the face. The Veteran noted that he was told by a VA physician at the Medical Center that the residual left extremity numbness was caused by his positioning during the surgery. VA treatment records showed that the Veteran established VA primary care in April 2006. The Veteran reported a family history of stroke and two previous surgical procedures for inguinal hernia. In April 2006, a VA clinician noted the Veteran's report of being examined at Bonham Ambulatory Care for chest pain and tingling in both hands. In May 2006, a VA clinician noted the Veteran's report of one episode in the past of tightness in his fingertips and transient discomfort in the chest for which he was hospitalized at "Red River Hospital." There was no further follow up on these symptoms, but the Veteran underwent a bilateral inguinal hernia repair at a VA Medical Center on September 12, 2006. Three days later, the Veteran experienced new symptoms of mild left upper extremity weakness, numbness of the left fingers, and facial droop. Six days after the surgery, the Veteran was readmitted to investigate the possibility of a cerebrovascular accident (stroke). Following neurologic examinations, including electrodiagnostic tests and magnetic resonance imaging studies, the attending clinicians ruled out the occurrence of a stroke and diagnosed Bell's palsy, carpal tunnel syndrome, an arachnoid cyst in the right middle cranial fossa, and peripheral neuropathy. Facial symptoms resolved, but the Veteran continued to report left upper extremity numbness in VA treatment encounters through November 2009. An additional disability is a qualifying disability if it was not the result of the Veteran's willful misconduct, the disability was caused by VA hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the VA, and the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or was an event not reasonably foreseeable. 38 U.S.C.A. § 1151(a). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the Veteran's additional disability. Merely showing that a Veteran received care or treatment and that the Veteran has an additional disability does not establish causation. 38 C.F.R. § 3.361(c)(1). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance 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. 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. 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. 38 C.F.R. § 3.361(d)(2). In the instant case, there is some medical evidence of abnormal symptoms of the fingers before VA surgical care in September 2006, additional new symptoms after the surgery, and persistent symptoms of the left upper extremity, variously diagnosed as carpal tunnel syndrome and peripheral neuropathy. There is also medical evidence of VA patient consent and performance of hernia surgery and lay evidence from the Veteran of a report from a VA physician that the symptoms may be associated with positioning during the surgery. Therefore, a medical opinion to determine whether the Veteran's current symptoms are a continuation of those present prior to surgery or a new qualifying disability is necessary. If the Veteran did incur a qualifying disability after the VA care, an opinion is necessary on whether that disability was caused by VA hospital care, medical or surgical treatment, and the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or was a result of an event not reasonably foreseeable. Additionally, while a September 12, 2006, VA treatment record indicates that the Veteran's informed consent was obtained for the surgery, the full consent form is not of record. Rather, such document indicates that it can be accessed through Vista imaging. Therefore, while on remand, a copy of the Veteran's consent form should be obtained. Further, it is necessary to initiate an additional request to the Veteran for authorization to obtain records of private care from Bonham Ambulatory Care and Red River Hospital to evaluate any symptoms or diagnoses of the left upper extremity prior to VA surgery. Accordingly, the case is REMANDED for the following action: 1. Request from the Veteran for authorization to obtain records of private care from Bonham Ambulatory Care and Red River Hospital for treatment of the tightness or numbness of the fingers prior to April 2006. If authorized, request the indicated records and associate any records received with the claims file. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 2. Obtain a copy of the Veteran's September 12, 2006, consent form (available through Vista imagining) for his hernia surgery at VA. 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). 3. After all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to adjudicate his § 1151 claim. The claims file, to include a copy of this Remand, must be made available to, and be reviewed by, the examiner. Any indicated evaluations, studies, and tests should be conducted. Request that the examiner provide an opinion regarding the following inquiries: (A) Did the Veteran incur an additional disability as a result of his bilateral hernia surgery conducted on September 9, 2006, to include disorders of the left upper extremity or face or other residuals of a stroke? (B) If so, was any additional disability caused by VA hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the VA, and the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; OR was the result of such additional disability an event not reasonably foreseeable? A rationale for any opinion offered should be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim for compensation under the provisions of 38 U.S.C.A. § 1151 should be readjudicated based on the entirety of the evidence, to include all evidence received since the issuance of the February 2010 statement of the case. If the claim remains denied, issue the Veteran and his representative a supplemental statement of the case with an appropriate opportunity for response. 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 or by the U.S. 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). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs