Citation Nr: 1338037 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 11-19 805 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a left shoulder disability, status post cyst removal. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.M. Seay, Counsel INTRODUCTION The Veteran served on active duty from August 1960 to August 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In April 2012, the Veteran testified during a travel board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. After the most recent supplemental statement of the case, additional evidence has been received. The Veteran submitted a written waiver of initial RO consideration of the evidence. This evidence is accepted for inclusion in the record on appeal. 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 In this case, the Board finds that additional development is required prior to adjudication of the Veteran's claim. The Veteran alleged that he incurred an additional disability of the left shoulder following an October 18, 2004 surgery at the Huntington VA Medical Center (VAMC). In an April 2012 statement, the Veteran explained that he had surgery in 2004 to remove a cyst from his left shoulder. He was told to pack his shoulder. He stated that his wound did not close until five months later. The Veteran reported that he cannot raise his arm and his hands and fingers go numb most of the time. The claims file contains VA treatment records from the Huntington VAMC, to include records dated in October 2004. In a request to the Huntington VAMC, the RO noted that the Veteran filed a claim based on surgery conducted on September 18, 2004. The RO requested all handwritten medical records, surgical records, clinical records, and nurses' notes covering the period of hospitalization or treatment on which the claim was based. In response, the Huntington VAMC stated that there were no copy of records available, administrative records were retired, and there were no medical records in the admin chart. However, the RO's request for records did not include the correct date of the Veteran's surgery. The RO requested records for the period of time covering the hospitalization (listed as September 18, 2004). The surgery was performed on October 18, 2004 at the Huntington VAMC. As such, the response from the Huntington VAMC is not sufficient to determine whether the records are unavailable as it is not clear whether the VAMC searched for all records or just for records covering the date of September 18, 2004. Accordingly, another request must be made to the Huntington VAMC for all available records pertaining to the October 18, 2004 surgery. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(2). In connection with the issue on appeal, the Veteran was provided a VA examination in November 2010. The examiner listed the diagnoses as rotator cuff tendinitis, subacromial bursitis, and arthrofibrosis. The examiner opined that the Veteran did not suffer additional disability or increased disability attributable to VA medical care. However, in response to the question as to whether the additional disability was due to an event not reasonably foreseeable, the examiner stated: "I do not feel that this was reasonably foreseeable." The examiner explained: it is "possible that he developed a problem that could limit range of motion due to not using shoulder while he had discomfort from packing but this would be unusual." Here, the examiner stated that the Veteran did not have an additional disability, but then commented that it was possible that the Veteran developed a problem that was "not reasonably foreseeable." Thus, the examiner's opinion is speculative. In addition, the Veteran submitted evidence related to other diagnoses of the left shoulder that were not of record at the time of the November 2010 VA examination. The Veteran submitted an electrodiagnostic report pertaining to the left shoulder which reflects an assessment of sensory motor peripheral neuropathy and a magnetic resonance imaging (MRI) study which shows an assessment of AC joint degenerative disease. Thus, the Board finds that a new opinion must be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all medical records, to include handwritten notes, consent form(s), surgical records, clinical records, and nurse's notes, regarding the October 18, 2004 surgery at the Huntington VAMC. All attempts to obtain these records must be documented in the claims file. If the records are unavailable, the Veteran should be informed. 2. After the above development has been completed, refer the case to a VA physician for a medical opinion on the claim for compensation under 38 U.S.C.A. § 1151. The claims file must be made available to the examiner for review. After reviewing the claims file, the physician is requested to provide an opinion as to the following: State whether it is at least as likely as not (50 percent probability or more) that the October 2004 surgery caused an additional disability of the left shoulder, to include neuropathy, tendinitis, AC joint degenerative disease, bursitis, and arthrofibrosis. If the surgery resulted in an additional disability or disabilities, please answer the following: Is it at least as likely as not (50 percent probability or more) that the proximate cause of any additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA providing the October 18, 2004 surgery? or Is it at least as likely as not (50 percent probability or more) that the proximate cause of any disability was due to an event not reasonably foreseeable. The examiner is advised that to establish carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing treatment, it must be shown that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or, VA furnished the treatment without the veteran's informed consent. The examiner is advised that the term "event not reasonably foreseeable" means whether a reasonable health care provider would have foreseen the event. 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. A complete rationale for all opinions must be provided. 3. Readjudicate the issue on appeal. If the benefit sought on appeal remains denied, issue a Supplemental Statement of the Case. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board. 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).