Citation Nr: 1512163 Decision Date: 03/23/15 Archive Date: 04/01/15 DOCKET NO. 10-26 093 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2014) for a lumbar spine disorder, to include L4-5 discitis with bacteremia, claimed as due to Department of Veterans Affairs (VA) lack of care/negligence while hospitalized for mild heart failure at the VA Medical Center (VAMC) in Gainesville, Florida, from January 26, 2007, to January 31, 2007. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Shauna M. Watkins, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Following the most recent readjudication of this appeal by the Agency of Original Jurisdiction (AOJ) in the May 2010 Statement of the Case (SOC), additional evidence was added to the record. The Veteran's service representative waived the Veteran's right to have the AOJ initially consider this evidence in a statement dated in February 2015. See 38 C.F.R. §§ 20.800, 20.1304 (2014). This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required on his part. REMAND The Veteran contends that he currently has a lumbar spine disorder, to include L4-5 discitis with bacteremia, as a result of VA lack of care/negligence while he was hospitalized for mild heart failure at the VAMC in Gainesville, Florida, from January 26, 2007, to January 31, 2007. Here, there is documentation showing the Veteran was hospitalized and treated from January 26, 2007, to January 31, 2007, by the VAMC in Gainesville, Florida, for mild heart failure, hypertension, and hyperlipidemia. Diagnostic tests were performed but heart surgery was not performed on the Veteran. Following the January 26, 2007, to January 31, 2007, VAMC hospitalization, the Veteran required additional treatment and hospitalizations, to include from February 4, 2007, to February 14, 2007, and from April 27, 2007, to April 30, 2007. The Veteran's discharge diagnosis on February 14, 2007, was "L4 discitis and bacteremia." The Veteran's discharge diagnosis in April 30, 2007, was "MSSA bacteremia c L4-5 discitis" and he was provided a spinal stability brace for his back. Current VAMC treatment records document the Veteran's complaint of low back pain and medication for this pain but do not contain a current diagnosis related to his low back pain. The current version of 38 U.S.C.A. § 1151 (applicable to claims received by VA on or after October 1, 1997, as in this case) provides, in pertinent part, that a Veteran may be awarded compensation for additional disability, not the result of his willful misconduct, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by VA, either by a VA employee or in a VA facility, and the proximate cause of the disability was (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or (2) an event not reasonably foreseeable. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361 (2014). Here, the Board cannot determine whether the Veteran currently has an additional back disability that was due to the January 26, 2007, to January 31, 2007, VA heart treatment, and if so, whether there was medical carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in providing the surgery and treatment or whether the consequences of the treatment were not reasonably foreseeable. The Board is prohibited from relying on its own unsubstantiated medical judgment in adjudicating a claim. See Crowe v. Brown, 7 Vet. App. 238 (1995); Austin v. Brown, 6 Vet. App. 547 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). To date, a VA examination has not been provided to the Veteran to examine his spine. A VA medical opinion was provided in January 2008. Following review of the claims file, the January 2008 VA examiner noted the Veteran's current low back pain but did not diagnose the Veteran with a current low back disorder. This examiner also did not provide a medical opinion concerning whether the Veteran had an additional disability from the January 26, 2007, to January 31, 2007, VA heart treatment. This examiner further did not address the legally correct standard for actual and proximate causation for these claims as he stated only that there was "absolutely no evidence of fault care" and did not provide any further conclusions. See 38 U.S.C.A. § 1151. The Board finds that the January 2008 VA medical opinion is inadequate for adjudication purposes. The Court has held that, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, the Board finds that, on remand, the Veteran should be afforded a new VA examination which addresses whether he experienced additional disability as a result of VA lack of care/negligence while hospitalized for mild heart failure at the VAMC in Gainesville, Florida, from January 26, 2007, to January 31, 2007. The Veteran is hereby notified that it is his responsibility to report for any examination scheduled in connection with this REMAND at whatever location it is scheduled and to cooperate in the development of his case. See Olson v. Principi, 3 Vet. App. 480 (1992) (finding Veteran must be prepared to meet obligations by cooperating with VA efforts to provide adequate medical examination). The consequences of failure to report for a VA examination may include denial of the Veteran's claim. See also 38 C.F.R. §§ 3.158, 3.655 (2014). Accordingly, the case is REMANDED for the following actions: 1. Afford the Veteran a VA examination and medical opinion with an appropriate medical professional with respect to his claim for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a lumbar spine disorder, to include L4-5 discitis with bactermia, from his hospitalization and treatment for mild heart failure at the VAMC in Gainesville, Florida, from January 26, 2007, to January 31, 2007. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran developed an additional disability of his lumbar spine, to include L4-5 discitis with bacteremia, as a result of medical carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable while he was hospitalized for mild heart failure at the VAMC in Gainesville, Florida, from January 26, 2007, to January 31, 2007. A complete rationale must be provided for any opinion(s) expressed. If any requested opinion cannot be provided without resorting to mere speculation, then the examiner should explain why this is so. 2. The Veteran should be given adequate notice of the requested examination which includes advising him of the consequences of his failure to report to the examination. If he fails to report to the examination, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 3. If, and only if, the Veteran fails to report for the requested VA examination, then forward his claims file and a copy of this REMAND to an appropriate VA clinician for his or her opinion. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran developed an additional disability of his lumbar spine, to include L4-5 discitis with bacteremia, as a result of medical carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable, while he was hospitalized for mild heart failure at the VAMC in Gainesville, Florida, from January 26, 2007, to January 31, 2007. A complete rationale must be provided for any opinion(s) expressed. If any requested opinion cannot be provided without resorting to mere speculation, then the clinician should explain why this is so. 4. Review the completed examination report or opinion and determine whether it is in substantial compliance with the terms of this REMAND. If not, please take appropriate corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 5. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claim. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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 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 2014). _________________________________________________ MICHAEL T. OSBORNE Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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).