Citation Nr: 1754538 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 16-45 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C. § 1151 (2012) for treatment at a Department of Veterans Affairs Medical Center for pancreatic mass. ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from April 1976 to June 1976. This matter comes to the Board of Veterans' Appeals (Board) from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran requested a Board videoconference hearing, but withdrew this request in July 2017. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (7). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that treatment he received for a pancreatic mass from the Hines VA Medical Center (VAMC), which included chemotherapy and removal of part of his stomach, resulted in additional disability, including severe pain, fatigue and loss of weight. He also asserts that he never actually had pancreatic cancer, as he was told by VA doctors. See, e.g., January 5, 2013 Veteran statement. A July 2016 date of contact notes, however, that the Veteran requested an advance on the docket due to being terminally ill with pancreatic cancer and cirrhosis of the liver. It was noted that he had been in hospice since June 2016. VA treatment records note that in August 2011 the Veteran was scheduled for Whipple procedure, but that the pancreatic mass was considered unresectable. A "roux en - Y" choledochojejunostomy and gastrojejunostomy were performed and a biopsy was negative for malignancy. It was decided that two to three cycles of folfirinox followed by chemotherapy and radiation treatment would be performed. The Veteran underwent chemotherapy in September 2011 for diagnosis of pancreatic carcinoma. A medical opinion was provided in July 2016. It was noted that the Veteran had a pancreatic mass that had been diagnosed by CT of the abdomen in May 2011 and then had an FNA (fine needle aspiration) and EGD (esophagogastroduodenoscopy) done to confirm the diagnosis of pancreatic cancer, but was unable to confirm diagnosis because of inaccessibility of the pancreatic lesion. The examiner found that there were no diagnosed conditions due to the EGD and FNA, or complications from the procedures. The Veteran is essentially claiming that he has complications from the chemotherapy/ radiation treatment and removal of part of his stomach and that VA misdiagnosed him with pancreatic cancer, because the biopsy was negative. However, he also noted in the July 2016 report of contact that he had pancreatic cancer. Additional development is necessary before this claim can be decided. The Veteran's contention needs to be specifically addressed; and it needs to be resolved in the medical records whether the Veteran has pancreatic cancer and/ or any residual disabilities from the treatment received at the Hines VAMC. 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. Make arrangements to obtain relevant treatment records pertaining to the Veteran for treatment for pancreatic mass and/ or pancreatic cancer from the Hines VAMC from September 2011 to present. If efforts to obtain these records are unsuccessful, notify the Veteran and indicate what further steps VA will make concerning this claim. 2. Ask the Veteran to identify any additional treatment he has received for his pancreatic mass and/ or pancreatic cancer. Make reasonable efforts to obtain any records identified and notify the Veteran of any negative responses and what further steps VA will make concerning his claim. 3. Thereafter, return the Veteran's electronic file to the examiner who provided the July 2016 opinion, if still available, for a supplemental opinion, addressing the Veteran's 38 U.S.C. § 1151 claim with respect to any residuals due to treatment at the Hines VAMC for pancreatic mass. If the former examiner is not available, then arrange for a medical opinion with another suitably qualified examiner. The examiner should review the electronic claims file in conjunction with the opinion. The examiner should provide opinions as to the following: (a) Does the Veteran have a confirmed diagnosis of pancreatic cancer? (b) Does the Veteran have any residuals (additional disability) from the treatment at the Hines VAMC, particularly from August 2011 to September 2011, to include as a result of treatment for pancreatic mass, including chemotherapy/ radiation treatment, and removal of part of stomach, such as pain, loss of weight, and fatigue? If so, is such additional disability the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in conducting the treatment, particularly, if the Veteran does not have pancreatic cancer? (c) In the course of the treatment from the Hines VAMC from August 2011 to September 2011, did VA fail to exercise the degree of care that would be expected of a reasonable health care provider in terms of diagnosing and treating the Veteran's pancreatic mass? (d) Was the proximate cause of any identified additional disability due to an event not reasonably foreseeable, i.e., would a reasonable health care provider have considered the results of the treatment for pancreatic mass, including chemotherapy/ radiation treatment and/ or removal of part of stomach, to be an ordinary risk of the treatment at issue? A complete rationale for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 4. Next, review the medical opinions obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, return the case to the examiner for completion of the inquiry. 5. Finally, readjudicate the claim on appeal based on all relevant evidence submitted since the August 2016 SOC concerning the 38 U.S.C. § 1151 claim. If the benefit remains denied, issue the Veteran a Supplemental Statement of the Case and allow for a reasonable period to respond. The Veteran has the right to submit additional evidence and argument on the matter or matters 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. §§ 5109B, 7112 (2012). S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2016).