Citation Nr: 1513073 Decision Date: 03/26/15 Archive Date: 04/03/15 DOCKET NO. 08-36 419 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability incurred as a result of a colonoscopy performed at the Spokane, Washington, VA Medical Center (VAMC) on October 15, 2004. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from March 1973 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Spokane, Washington. In an August 2013 decision, the Board denied the Veteran's claim of entitlement to compensation under 38 U.S.C.A. § 1151. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In July 2014, the Court vacated the Board's August 2013 decision and remanded the matter for action in compliance with a Joint Motion for Remand. In an October 2014 letter, the Board provided the Veteran and his representative the opportunity to submit additional evidence and argument in support of the appeal. The Veteran provided argument in December 2014 and his representative furnished additional argument in January 2015. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. In December 2014, the Veteran submitted a claim of entitlement to service connection for hernia and bowel disabilities as secondary to his service-connected bilateral knee and lumbar spine disabilities. This matter has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). REMAND In the July 2014 Joint Motion for Remand, the parties determined that the Board failed "to provide an adequate statement of the reasons or bases with respect to its decision as to the competency of Appellant's lay statements." Specifically, the Board did not consider the Veteran's medical training as a hospital corpsman in rejecting the competency of his statements in support of additional disability and medical nexus. The Board has reviewed the record and notes that the Veteran has repeatedly argued that the March 2013 VA examiner failed to address his competent contentions of left lower quadrant hernia and bowel disturbances as a result of the October 2004 colonoscopy performed at the Spokane VAMC. See, e.g., the Veteran's statements dated July 2013 & December 2014. To this end, the Veteran recently submitted additional argument detailing his current hernia and bowel symptoms. See the Veteran's statement dated December 2014. Accordingly, the Board finds that remand for a new VA examination with medical opinion is required. On remand, any previously unobtained ongoing relevant medical records should be procured and associated with the Veteran's claims file. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain all VA outpatient records dated since March 2011. 2. Then request a VA examination and medical opinion from an appropriate examiner. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. After performing a physical examination and any necessary tests or studies, the examiner must specifically address the following: (a) Is it at least as likely as likely as not (50 percent probability or greater) that the Veteran incurred additional disability, to include hepatitis, infection, left lower quadrant hernia, and bowel disabilities, as a result of an October 2004 colonoscopy performed at the Spokane VAMC? In answering this question the examiner must specifically address the Veteran's contentions relating his current claimed hepatitis, infection, hernia, and bowel disabilities to the October 2004 colonoscopy. (b) If additional disability exists, is it at least as likely as not (50 percent or greater) that the proximate cause of such additional disability was carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA? In determining whether the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, please discuss if VA failed to exercise the degree of care that would be expected of a reasonable health care provider. (c) If additional disability exists, is it at least as likely as not (50 percent or greater) that such disability was due to an event not reasonably foreseeable? In determining whether an event is not reasonably foreseeable, the standard is what a "reasonable health care provider" would have considered to be an ordinary risk of treatment that would be disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32, which requires the primary health care provider to explain the reasonably foreseeable risks associated with the surgery or treatment being provided. The examiner's report must reflect consideration of the Veteran's documented medical history and assertions. The examiner must specifically address the Veteran's contentions relating his current claimed hepatitis, infection, hernia, and bowel disabilities to the October 2004 colonoscopy. A detailed explanation for all conclusions reached by the examiner must be provided. Citations to the record or relevant medical principles should be included as necessary to explain the opinion(s). Thorough rationales should be given for all opinions and conclusions expressed. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). 3. Then readjudicate the appeal. If the benefit sought is not granted, furnish the Veteran with a supplemental statement of the case and an opportunity to respond. 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 Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ SONNET BUSH 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 Court. 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).