Citation Nr: 1337997 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 10-12 929 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability, to include a rash, left side weakness, loss of balance and memory impairment, claimed as due to craniotomy for Grade II astrocytoma performed by VA in February 2000. 2. Entitlement to compensation under 38 U.S.C.A. § 1151 for a dental disorder, due to medication prescribed by VA. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The Veteran had active service from February 1963 to February 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. 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 alleges that he suffers from additional disability, including a rash, left side weakness, loss of balance and memory impairment, as a result of undergoing craniotomy for Grade II astrocytoma done by VA in February 2000. Further, he claims dental disability, including loss of teeth, as a result of Dilantin which was prescribed prior to and after the February 2000 surgery to control seizures. VA records show the Veteran was found to have "a parietal lobe mass lesion documented on CT and MRI scanning March 8, 1999 with probable partial epileptic attacks manifested by dysgeusia (abnormal taste) and sensory changes" and was prescribed Dilantin to "ameliorate the possible epileptic phenomenon." These records show that a craniotomy for Grade II astrocytoma was performed in February 2000 and Dilantin was prescribed "prophylactically after his operation." These records also show that the Veteran complained of a skin rash, left side weakness, loss of balance and memory impairment after the craniotomy. February 2005 VA records show that the Veteran self discontinued the Dilantin "over 1 year ago due to side effects on teeth." To establish entitlement to benefits under 38 U.S.C.A. § 1151, the Veteran must show both that he has additional disability caused by VA hospital care, or medical or surgical treatment (and not due to his own misconduct), and that the proximate cause of the additional disability was carelessness, lack of proper skill, error in judgment, or similar instance of fault (on the part of VA), or was an event not reasonably foreseeable. Regarding whether an event was reasonably forseeable, the United States Court of Appeals for Veterans Claims (Court) recently held that "the actual foreseeability of an event by a treating physician, an expert, or any other health care provider, is not dispositive. The standard is what a 'reasonable health care provider' would have considered to be an ordinary risk of treatment that would be disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32, which, as noted above, requires the primary health care provider to explain the reasonably foreseeable risks associated with the surgery or treatment being provided." Schertz v. Shinseki, No. 11-2694 (Vet. App. Sep. 26, 2013). There is currently no medical opinion of record addressing the nature and etiology of the Veteran's claimed additional disabilities (although the Board is aware that the Veteran failed to report for an examination in June 2005, he has indicated a willingness to report for an examination). The Board finds that a VA examination to secure a medical advisory opinion is necessary. The "low threshold" standard as to when an examination or nexus opinion is necessary has been met. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Furthermore, a review of the record shows that the complete medical records pertaining to this matter have not been secured. Notably, the Veteran has reported that, in the course of dental treatment, the dentist told him that his loss of teeth is the result of taking Dilantin. Further, although the February 2000 Operative Report for the craniotomy notes that "[i]t was explained to the patient that there was a high risk for a stroke, bleeding, infection and even death and the patient wanted to go ahead with the surgery," the record before the Board does not include any informed consent forms or the hospital discharge summary. These records would likely to contain pertinent information, and must be secured. Accordingly, the case is REMANDED for the following action: 1. The RO should ask the Veteran to identify all providers of medical and/or dental treatment he has received for his claimed disabilities. After securing any release(s) necessary to obtain private records the RO should obtain copies of complete clinical records (those not already in the claims file) from the identified sources, to specifically include the informed consent forms, hospital discharge summary for the Veteran's February 2000 craniotomy, and complete dental treatment records. If any VA records requested are unavailable, the reason must be explained for the record, and the Veteran must be so notified (through a formal memorandum of unavailability). If any private provider does not respond to the RO's request for records the Veteran has identified, the Veteran should be so notified, and advised that ultimately it is his responsibility to ensure that such records are received. 2. After the development sought above is completed, the RO should arrange for the Veteran to be examined by an appropriate specialist to secure a medical advisory opinion in connection with his claims seeking compensation under 38 U.S.C.A. § 1151 for residuals of craniotomy for Grade II astrocytoma in February 2000 and as a result of being prescribed Dilantin. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination, and the history elicited from the Veteran must include his allegations as to what specific new disability or aggravated/worsened disability, i.e., pathology, symptoms, impairment, he believes has resulted from VA treatment. Any tests or studies deemed necessary must be completed. Based on a review of the record, and the examination, the consulting physician should provide opinions responding to the following: a) Please identify by medical diagnosis any (and all) additional disability the Veteran is shown to have following his VA craniotomy for Grade II astrocytoma in February 2000. For each diagnosis found, please address whether it is at least as likely as not (50 percent probability or more) that such additional disability is (a) the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or (b) the result of an event not reasonably foreseeable. b) Based on the factual evidence of record, is it at least as likely as not (50 percent probability or more) that the Veteran incurred any additional dental disability as the result of being prescribed Dilantin. If so, please address whether it is at least as likely as not (50 percent probability or more) that such additional dental disability is (a) the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or (b) the result of an event not reasonably foreseeable. c) If it is found that there was no relevant instance of fault on the part of VA in the medical and surgical treatment provided to the Veteran and that any additional disability was reasonably forseeable; please indicate whether a 'reasonable health care provider' seeking to obtain informed concent would have disclosed the possibility of the post-surgical and/or dental complications as a reasonably forseeable risk associated with the February 2000 craniotomy and/or Dilantin treatment being provided. The examiner must explain the rationale for all opinions, citing to any supporting factual data. 3. The RO should then re-adjudicate the claims. If either claim remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. The appellant has the right to submit additional evidence and argument on the 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 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). _________________________________________________ MICHAEL MARTIN 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).