Citation Nr: 1602866 Decision Date: 01/29/16 Archive Date: 02/05/16 DOCKET NO. 14-02 063 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 (West 2014) for a cardiac disorder following VA treatment in August and September 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran had active service from September 1971 to July 1973. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a September 2013 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (the RO) in San Juan, the Commonwealth of Puerto Rico. In May 2014, the Veteran failed to report for a videoconference hearing before a Veterans Law Judge. Therefore, no further development as to a hearing is necessary. The Board's review includes the paper and electronic records. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) has been raised by the record in a May 2013 statement, but has not been adjudicated by the Agency of Original Jurisdiction (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) (2015). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran underwent a cardiac catheterization at a VA Medical Center on August 10, 2009. It appears that he underwent a stent placement at that same VA Medical Center during a hospitalization from August 26, 2009, to August 27, 2009. He was hospitalized at a VA Medical Center from August 29, 2009, to September 3, 2009, for treatment of a subacute stent thrombosis. A December 2009 VA treatment record reflects that the thrombosis was secondary to clopidogrel (Plavix) resistance. Records from the hospitalization at a VA Medical Center from August 29, 2009, to September 3, 2009, do not appear complete. Therefore, another attempt to obtain all treatment records regarding a likely VA hospitalization from August 26, 2009, to August 27, 2009, for a stent placement and the complete records from the hospitalization from August 29, 2009, to September 3, 2009, is warranted. While the Veteran was afforded a VA examination in July 2013, it does not appear that the examiner adequately addressed whether an additional disability resulted from each of the particular treatments in August and September 2009, and whether any additional disability was an event reasonably foreseeable. Thus, an addendum to the July 2013 VA examination report is necessary. In the March 2015 appellant's brief, the representative noted that the Veteran apparently submitted records from a Dr. Moro, but that the records were not in the claims file. An attempt to obtain records from Dr. Moro should be made. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all treatment for his cardiac disorder and obtain any identified records. Attempt to obtain all records from Dr. Moro. Regardless of the claimant's response, obtain all treatment records from the San Juan VA Medical Center regarding (a) a likely VA hospitalization from August 26, 2009, to August 27, 2009, for a stent placement; (b) the complete records from the hospitalization from August 29, 2009, to September 3, 2009; and (c) all treatment from September 2013 to the present. The AOJ should document all efforts to obtain treatment records from the San Juan VA Medical Center. 2. Thereafter, have the July 2013 VA examiner review the claims file and prepare an addendum to the July 2013 examination report. The claims file must be made available to the examiner in conjunction with the preparation of the addendum. The addendum to the examination report must indicate that the claims file was reviewed in conjunction with the preparation of the addendum. If the July 2013 VA examiner is unavailable, the AOJ should arrange to have claims folder to be reviewed by another appropriate medical professional. If the July 2013 VA examiner or the new medical professional thinks another examination is necessary, the Veteran should be scheduled for one. The examiner should provide a written response to the following inquiries: (a) August 10, 2009, cardiac catheterization (i.) Whether it is at least as likely as not (50 percent or greater) that the Veteran has any additional disability caused by the August 10, 2009, VA cardiac catheterization. (ii.) If the examiner finds that it is at least as likely as not that any additional disability was caused by the August 10, 2009, VA cardiac catheterization, whether it is at least as likely as not (50 percent or greater): (i) that there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in providing the August 10, 2009, VA cardiac catheterization; or (ii) that the current additional cardiac disability caused by the August 10, 2009, VA cardiac catheterization was an event not reasonably foreseeable. (b) August 26, 2009, stent placement (i.) Whether it is at least as likely as not (50 percent or greater) that the Veteran has any additional disability caused by the August 26, 2009, to August 27, 2009, hospitalization for a stent placement during which clopidogrel (Plavix) was prescribed. (ii.) If the examiner finds that it is at least as likely as not that any additional disability was caused by the August 26, 2009, to August 27, 2009, hospitalization for a stent placement, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater): (i) that there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in providing treatment during the August 26, 2009, to August 27, 2009, hospitalization for a stent placement during which clopidogrel (Plavix) was prescribed; or (ii) that the current additional cardiac disability caused by treatment during the August 26, 2009, to August 27, 2009, hospitalization for a stent placement during which clopidogrel (Plavix) was prescribed was an event not reasonably foreseeable. (c) August 29, 2009, subacute stent thrombosis (i.) Whether it is at least as likely as not (50 percent or greater) that the Veteran has any additional disability caused by the August 29, 2009, to September 3, 2009, hospitalization for treatment of a subacute stent thrombosis. (ii.) If the examiner finds that it is at least as likely as not that any additional disability was caused by the August 29, 2009, to September 3, 2009, hospitalization for treatment of a subacute stent thrombosis, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater): (i) that there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in providing treatment during the August 29, 2009, to September 3, 2009, hospitalization for treatment of a subacute stent thrombosis; or (ii) that the current additional cardiac disability caused by treatment during the August 29, 2009, to September 3, 2009, hospitalization for treatment of a subacute stent thrombosis was an event not reasonably foreseeable. 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. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. Thereafter, the AOJ must readjudicate the issue on appeal. If the benefit is not granted, the Veteran should be furnished with a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant 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 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 2014). _________________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).