Citation Nr: 1451920 Decision Date: 11/24/14 Archive Date: 12/02/14 DOCKET NO. 12-18 064 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to disability compensation pursuant to 38 U.S.C.A. § 1151 for residuals of a stroke. 2. Entitlement to disability compensation pursuant to 38 U.S.C.A. § 1151 for additional colon disability with infection. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran had active service from January 1977 to January 1980. These matters come to the Board of Veterans' Appeals (Board) on appeal from July 2009 and April 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In May 2011, the Veteran testified before a Decision Review Officer at the RO. In July 2014, he testified before the undersigned Veterans Law Judge. Transcripts of the hearings are of record. The Veteran's paper claims file and electronic folder in Virtual VA and the Veterans Benefits Management System (VBMS) have been reviewed in conjunction with the disposition of the issues on appeal. The Veteran's electronic folder in VBMS does not include any documents. The electronic folder in Virtual VA includes a copy of the July 2014 hearing. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action on his part is required. REMAND This appeal arises from the Veteran's contention that he has additional disabilities resulting from a prostate biopsy performed at a VA facility on June 2, 2008. Regarding the stroke, the Veteran asserts that VA improperly instructed him to discontinue Coumadin prior to his biopsy on June 2, 2008, without providing him with an alternative anticoagulant. See, e.g., July 2008 claim, July 2009 notice of disagreement (NOD), May 2011 statement, and July 2014 Hearing Tr. at 3-4. He claims that he suffered a stroke as a result. Thereafter, he was given Lovenex as a bridge from Coumadin prior to surgeries conducted in September 2008 and October 2008. He did not have any cerebral vascular incidents following the September 2008 and October 2008 surgeries. VA treatment records show that the Veteran was instructed to discontinue Coumadin prior to the prostate biopsy on June 2, 2008, and that he had stroke on June 4, 2008. Private treatment records from Baptist Health System indicate that he presented with right-sided weakness, but that the weakness and neurologic dysfunction resolved. See June 11, 2008 discharge summary. An August 2008 VA cardiology note indicates the Veteran had left hand weakness and memory loss, which had improved, but not resolved. The cardiologist recommended a Lovenex bridge for his next surgery (ICD (defibrillator) replacement in September 2008). During the September 2014 hearing, the Veteran testified that he had current residuals from the stroke, including slurred speech, headaches, memory loss, and jerking of the right hand, and right-sided weakness. Based on the foregoing, the Board finds that a VA examination is needed to clarify whether the Veteran has additional disability, i.e., residuals from the June 4, 2008 stroke, caused by Coumadin being discontinued without bridging therapy prior to the prostate biopsy on June 2, 2008. In addition, any relevant outstanding treatment records should be obtained. The Veteran had also claimed entitlement to § 1151 compensation for additional colon disability with infection resulting from the prostate biopsy. The RO denied this claim in an April 2010 rating decision, and the Veteran filed a notice of disagreement (NOD) in January 2011. Because the NOD remains unprocessed, the Board finds that a remand is necessary for issuance of a Statement of the Case (SOC). See Manlincon v. West, 12 Vet. App 238, 240-241 (1999). Accordingly, the case is REMANDED for the following actions: 1. The AOJ should issue an SOC addressing entitlement to disability compensation pursuant to 38 U.S.C.A. § 1151 for additional colon disability with infection as a result of a prostate biopsy performed on June 2, 2008. The SOC should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations. Thereafter, the Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. The AOJ should advise the Veteran that the claims file will not be returned to the Board for appellate consideration of this particular issue following the issuance of the SOC unless he perfects his appeal. 2. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for residuals of the June 4, 2008, stroke. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding and relevant VA treatment records, including from the South Texas Health Care System dated from May 2011 to the present. 3. After obtaining any identified and outstanding records, the Veteran should be afforded a VA examination to determine the nature and etiology of any current residuals associated with the June 4, 2008 stroke. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's post-service medical records and statements. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should provide opinions responding to the following: a. Is it at least as likely as not that the discontinuance of Coumadin (without bridging therapy) prior to the prostate biopsy on June 2, 2008, caused the stroke that occurred on June 4, 2008? b. Is it at least as likely as not that the Veteran has chronic residuals following the June 4, 2008, stroke? If so, please identify each disability and associated impairment of function. c. If the answers to questions (a) and (b) are in the affirmative, is it at least as likely as not that the stroke and associated residuals were due to carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA? d. If the answers to (a) and (b) are in the affirmative, notwithstanding the informed consent documents of record, based upon the specific facts and circumstances of the Veteran's case, was the stroke a reasonably foreseeable outcome of the discontinuance of Coumadin prior the prostate biopsy? (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available for review. 4. After completing the above actions, the AOJ should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 5. Thereafter, the AOJ should readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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 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. 2014). _________________________________________________ J.W. ZISSIMOS 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) (2014).