Citation Nr: 1338060 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 10-37 298 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151, for an intestinal obstruction. 2. Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151, for loss of use of a creative organ. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers (NACVSO) ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to May 1972. The Veteran received, in part, the Combat Infantryman's Badge (CIB). This appeal to the Board of Veterans' Appeals, hereinafter the Board, arises from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. By that rating action, the RO denied entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151, for an intestinal obstruction and loss of use of a creative organ. The Veteran appealed this rating action to the Board. In March 2011, the Board remanded the issues on appeal to the RO to have the Veteran scheduled for a hearing before a Veterans Law Judge. In September 2011, the Veteran testified before the undersigned at the Newark, New Jersey RO. A copy of the hearing transcript has been associated with the record. On VA Form 9, dated and signed by the Veteran in July 2010, he raised the following issues: (i) entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for scarring of the abdomen; (ii) entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for neurological impairment of the upper extremities; and, (iii) entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for neurological impairment of the lower extremities. These issues have been raised, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Thus, the Board does not have jurisdiction over them and they are REFERRED to the AOJ for appropriate action. 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 as a result of improper treatment by VA personnel during a retroperitoneal ultrasound at the East Orange, New Jersey, VA Medical Center (VAMC) on November 16, 2005 he developed additional intestinal disability (intestinal obstruction) and loss of use of a creative organ (i.e., erectile dysfunction). He testified that the VA technician that performed the retroperitoneal ultrasound had caused damage to his stomach through the use of manipulation by having pressed the head of the ultrasound device into his stomach. He maintains that after the retroperitoneal ultrasound, he underwent corrective surgery for bowel obstruction at a private medical clinic that same day. He contends that ever since he underwent the corrective bowel obstruction surgery, he has had erectile dysfunction. (See VA Form 21-4138, Statement in Support of Claim, dated and signed by the Veteran's representative in July 2009; VA Form 9, Appeal to Board of Veterans Appeal, dated and signed by the Veteran in July 2010; and Transcript (T.) at pages (pgs.) 5-7, 11)). The evidence of record reflects that on November 16, 2005, the Veteran underwent a retroperitoneal ultrasound at the VAMC in East Orange, New Jersey. The ultrasound revealed that the Veteran had normal sized kidneys without evidence of hydronephrosis. The Veteran had bilateral renal cysts, with the largest cyst in the left lower pole corresponding to the findings on a recent magnetic resonance imaging scan (MRI) of the spine. (See VA treatment report, dated November 16, 2005). Treatment records, dated November 19-21, 2005, prepared by Community Medical Center, show that the Veteran presented to that facility with nausea, vomiting with central abdominal pain and low back pain ever since he had undergone an ultrasound for kidney cysts at a VA facility one week previously. The Veteran reported that he had been followed at the VA and that he had recently undergone an ultrasound for a renal cyst that had resulted in a change in bowel status and pain. A computed tomography (CT) scan of the Veteran's abdomen revealed a partial small bowel obstruction with a loop of small bowel incarcerated in the umbilical hernia. An impression, in part, of small bowel obstruction and umbilical hernia was entered. The Veteran underwent the following procedures: (i) exploratory laparotomy;(ii) lysis of adhesions;(iii) repair of a ventral hernia; and; (iv) excision of previously placed mesh. (See reports, dated November 20-21, 2005, prepared by Community Medical Center). In view of the foregoing, the Board finds that an examination is needed in order to obtain an opinion as to whether the Veteran has additional disability that was caused by the VA technician's treatment while performing a retroperitoneal ultrasound on the Veteran at the East Orange, New Jersey VAMC on November 16, 2004; and whether the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part or an event which was not reasonably foreseeable. See 38 U.S.C.A. § 1151(a)(1)(A) and (B) (West 2002); 38 C.F.R. § 3.358 (2013). In addition, in June 2010, the RO issued a statement of the case (SOC), wherein it addressed the 1151 issues on appeal. However, since its issuance, the following private and VA medical records were received by VA in July and October 2011: (i) Community Medical Hospital reports, dated November 19-20, 2005; reports, dated in November and December 2005, May 2008 and October 2011, prepared by J. K., M. D; (iii) October 2011 report, prepared by P. L., M. D.; and, (v) VA treatment records, dated from January 2005 to June 2013, uploaded to the Veteran's Virtual VA electronic claims file. The Veteran has not waived consideration of the above-cited evidence by the RO. See 38 C.F.R. § 20.1304 (2013). (Parenthetically, the Board notes that the Veteran waived initial RO consideration of a statement, prepared by his spouse, J. W. and submitted at the hearing before the undersigned in September 2011). Since the issues on appeal are being remanded for other substantive development and in the interest of judicial economy, the Board will instruct the RO to consider this evidence on remand and issue a Supplemental Statement of the Case (SSOC), rather than attempt to obtain the Veteran's waiver of his right to RO consideration of the additional evidence in the first instance. See 38 C.F.R. §§ 19.31, 19.37 (2013). Accordingly, the case is REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should arrange for the Veteran to be examined by a gastroenterologist and urologist, if possible. The examiners should review the claims folder. A. The examiners should confirm, as it relates to their specific disability, whether the Veteran has a gastrointestinal disability and loss of use of a creative organ (e.g., erectile dysfunction). B. If the response above is affirmative, each examiner must provide an opinion to the following question as it relates to his or her specific disability: Is it more likely than not (greater than a 50 percent probability) or less likely as not (less than a 50 percent probability) that the additional disability is due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing treatment and did VA fail to exercise the degree of care that would be expected of a reasonable health care provider? The Veteran has asserted that he has additional gastrointestinal disability and loss of use of a creative organ (e.g., erectile dysfunction) because a VA technician inappropriately treated him during a retroperitoneal ultrasound on November 16, 2005; that caused him to undergo corrective surgery for bowel obstruction, which, ultimately, evolved into sexual dysfunction. Each examiner should provide comment, as it relates to their respective disability, on whether any manipulation or misappropriate use of the ultrasound provided by the VA technician would have caused or resulted in the Veteran's subsequent corrective surgery for bowel obstruction and resulting loss of use of a creative organ/sexual dysfunction. C. Each examiner should comment, as it relates to their respective disability, if there is additional intestinal disability and loss of use of a creative organ/sexual dysfunction, was it caused by an event that was not reasonably foreseeable? (Note: the event need not be 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). D. Each examiner should comment as to whether any intestinal disability and loss of use of a creative organ/sexual dysfunction was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures? The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. E. The examiners must provide reasons for all opinions and conclusions reached, citing the objective medical findings leading to the provided conclusions. If further testing or examination by other specialists is warranted, such testing or examination is to be accomplished prior to completion of the examiners' examination reports. If an examiner is unable to provide the requested opinion without resort to speculation, that examiner must provide an explanation for the basis of that determination, for example, does the examiner lack the expertise to render such an opinion, or is some additional testing or information needed, and possibly available that would permit an opinion. If so, a qualified examiner should provide an opinion and/or the additional testing should be accomplished. If the examiner cannot provide an opinion because it cannot be determined from current medical knowledge whether a lack of treatment or inadequate treatment resulted in the development of an intestinal disability or loss of use of a creative organ/sexual dysfunction this should be fully explained. If an examiner references any VA electronic medical records that are not contained in the claims folder (including Virtual VA) the AOJ should obtain the records. 2. The AOJ should review the examination reports. If a report does not include the information and opinions sought in this remand, corrective actions should be taken. 3. After assuring compliance with the above development, as well as with any other notice and development action required by law, the RO should adjudicate the following new claims: (i) entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for scarring of the abdomen; (ii) entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for neurological impairment of the upper extremities; and, (iii) entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for neurological impairment of the lower extremities. In addition, the RO should readjudicate the claims of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151, for an intestinal obstruction and entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151, for loss of use of a creative organ. 4. Then, for any claim which is denied, the Veteran and his representative must be provided with a supplemental statement of the case, which includes all the evidence received after issuance of a June 2010 SOC. After affording an opportunity to response, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ D. C. SPICKLER 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) (2013).