Citation Nr: 1452020 Decision Date: 11/24/14 Archive Date: 12/02/14 DOCKET NO. 13-29 093 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for additional disability of gynecomastia. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO). REMAND A longitudinal review of the record revealed that the Veteran filed a claim for entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 in October 2011 for additional disability of gynecomastia due to VA treatment from 2001 to 2007 at the VA Medical Center (VAMC) in St. Louis, Missouri. Under VA laws and regulations, when a veteran suffers additional disability or death as a result of training, hospital care, medical or surgical treatment, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such disability or death was service-connected. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. §§ 3.358, 3.361 (2014). Since the Veteran filed his claim after October 1, 1997, he must show some degree of fault, and more specifically, that the proximate cause of his disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing medical care or was an event not reasonably foreseeable. 38 U.S.C.A. § 1151(a)(1); 38 C.F.R. § 3.361. The Veteran has asserted that he developed gynecomastia after taking Spironolactone, a medication first prescribed by a VA treatment provider in December 2001. He contends that he was not informed of the serious side effects, including gynecomastia, before taking the prescribed medication. He further contends that he received negligent follow-up care from a VA Advanced Practical Nurse (APN) at the VAMC while taking Spironolactone from 2001 to 2007, intermittently. Despite his repeated complaints of progressive breast enlargement over the phone, the Veteran indicated that Spironolactone was only stopped after his gynecomastia was observed in person by the VA APN during a chance encounter at the VAMC while the Veteran was visiting another patient. VA telephone contact records showed that a VA APN renewed Spironolactone over the phone in June 2007, July 2007, and September 2007. In the majority of those telephone contact records, the VA APN noted that a plan of care was discussed with the Veteran, including potential side effects of prescribed medication. None of the records showed complaints of gynecomastia by the Veteran. However, in December 2007, the Veteran was instructed to stop taking Spironolactone by the VA APN, after the VA APN called regarding gynecomastia. In a February 2008 record, it was noted that Spironolactone had been stopped due to gynecomastia. While the record contains a detailed VA examination and medical opinion for this matter dated in September 2011, the Board finds it necessary to remand this matter to obtain an addendum VA medical opinion to address whether the Veteran received negligent follow-up care from VA at the VAMC after he began taking Spironolactone, intermittently, from 2001 to 2007, as VA continued to renew his prescription for the medication over the phone without seeing him in person. Evidence of record further indicates that the Veteran filed an administrative tort claim regarding gynecomastia in February 2012. The claim was denied at some point by VA Office of the Regional Counsel. In a February 2012 written statement, the Veteran indicated that mutual culpability had been found between himself and VA and that he did not receive a settlement. In an April 2013 letter, VA Office of the General Counsel detailed that the matter was currently in the process of reconsideration. In a November 2013 statement, the Veteran's representative requested that VA obtain records related to the Veteran's administrative tort claim regarding gynecomastia due to VA medical treatment, as it was probative to the matter on appeal. The claims file also reflects that the Veteran has received VA medical treatment for gynecomastia from the St. Louis VAMC. However, evidence of record only includes VA treatment records dated up to April 2013 from that facility. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). All outstanding VA records should be obtained and associated with the claims file. Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Regardless of the Veteran's response, the RO must obtain all outstanding records relevant to the claim being remanded, to include VA treatment records from St. Louis VAMC. The RO must also contact the VA Office of the General Counsel and Regional Counsel, and must obtain all records related to the Veteran's administrative tort claim regarding gynecomastia due to VA medical treatment. All attempts to secure this evidence must be documented in the record by the RO. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. If the RO is unable to secure any of the identified records, the RO must notify the Veteran and his representative and (a) identify the information the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Veteran is ultimately responsible for providing information. The Veteran and his representative must then be given an opportunity to respond. 2. An addendum VA medical opinion must be obtained to determine if the Veteran has an additional disability of gynecomastia as a result of the VA treatment at the St. Louis VAMC from 2001 to 2007. Another examination of the Veteran must only be performed if deemed necessary by the examiner providing the opinion. The claims file and all pertinent electronic records must be made available to the examiner, and the examiner must specify in the report that these records have been reviewed. Based on a review of the evidence of record, the examiner must provide an opinion as to whether the additional disability of gynecomastia was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of the VA, in treating the Veteran from 2001 to 2007, including the actions of VA in monitoring the use of and prescribing renewals of Spironolactone over the phone, and if so, did VA fail to exercise the degree of care that would be expected of a reasonable health care provider. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. The RO must notify the Veteran that it is his responsibility to report for an examination if scheduled, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2014). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's record that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's record demonstrating any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO must review any medical opinion and/or examination report to ensure that it is in complete compliance with the directives of this Remand. If any report is deficient in any manner, the RO must implement corrective procedures at once. 5. Once the above actions have been completed, and any other development as may be indicated by any response received as a consequence of the actions taken above, the RO must re-adjudicate the Veteran's claim, taking into consideration all relevant evidence associated with the evidence of record since the August 2013 statement of the case. If the benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 6. This appeal has been advanced on the Board's docket. Expedited handling is required. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).