Citation Nr: 1800527 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-11 026A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to compensation under 38 U.S.C. § 1151 for a bilateral shoulder disability as a result of VA examination on April 30, 2010. 2. Entitlement to compensation under 38 U.S.C. § 1151 for a bilateral knee disability as a result of VA examination on April 30, 2010. 3. Entitlement to compensation under 38 U.S.C. § 1151 for panic attacks as a result of VA examination on April 30, 2010. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Ashley Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1969 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In that decision, the RO denied entitlement to compensation under 38 U.S.C. § 1151 for bilateral shoulder disability, bilateral shoulder disability, and panic attacks as the result of a VA examination on April 30, 2010. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In October 2010, the Veteran filed a claim for compensation under 38 U.S.C. § 1151 for additional disabilities he incurred as a result of VA bone scan that he underwent on April 30, 2010. Specifically, he claims that on April 30, 2010, he was escorted by a VA treatment provider to a room where the bone scan machine was located and advised to recline on the machine and was secured with a band. He stated that after two minutes into the bone scan, he began to panicked, felt as if he was unable to breathe, and requested assistance. He stated that he realized that no one was in the room, and became more panicked. Thereafter, he removed the band that was securing him in the bone scan machine and tried to escape. He states that while he was trying to escape from the bone scan machine, he pushed on top of the machine, incurring his claimed disabilities. He indicated that while he was attempting to escape from the bone scan machine, the VA treatment provider re-entered the room. Thereafter, he completed the bone scan. He states that due to this event, he has experienced pain in his shoulders, knees, and has become nervous. The record contains a VA bone imaging study dated April 30, 2010. The impression was unremarkable bone scan. In a February 2012 VA general medical examination report, the Veteran was diagnosed with residuals of status post bilateral knee arthroplasty, bilateral knee arthrosis, and anxiety. VA treatment records dated in February 2013 document the Veteran's complaints of psychiatric symptoms such as anxiety, in which he relates to the events that occurred on April 30, 2010. Private treatment records dated in October 2016 show a diagnosis of left rotator cuff rupture. 38 U.S.C.A. § 1151 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. § 1151; 38 C.F.R. § 3.361. In determining whether a VA examination or opinion is warranted in a section 1151 claim, the Board must analyze the evidence of record to determine whether it "indicates" that the disability or symptoms "may be associated with" VA treatment, a question with a similarly low threshold as that applicable to service connection claims. Trafter v. Shinseki, 26 Vet. App. 267, 280 (2013). Here, the evidence indicates that the Veteran's bilateral shoulder and knee disabilities and panic attacks may be associated with VA treatment. The Veteran has not been afforded a VA examination in this matter. As such, the Board cannot determine whether the Veteran currently has additional disabilities that were the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA for services rendered on April 30, 2010. Therefore, the Board finds that a remand is warranted to schedule a VA examination and obtain a medical opinion with regard to the Veteran's contentions that he incurred additional disabilities as a result of VA bone scan on April 30, 2010. Id. at 280 (a claim for compensation for additional disability under 38 U.S.C.A. § 1151 constitutes a disability compensation claim and that 38 U.S.C.A. § 5103A(d) applies). Accordingly, the claims are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate VA physician to obtain an opinion regarding the Veteran's 38 U.S.C.A. § 1151 claim concerning his claimed bilateral knee disability, bilateral shoulder disability, and panic attacks. The physician must review the claims file, including a copy of this REMAND. The physician should discuss the Veteran's statements in support of his claim and prior VA medical evidence of record, to include VA outpatient treatment reports. The physician should address the following: A. Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran has a current disability, i.e., at any time since approximately April 30, 2010, to include claimed bilateral knee disability, bilateral shoulder disability, and a disability manifested by panic attacks, that was caused by the April 30, 2010, VA bone scan and was the result of 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. B. If the response to question (A) is negative, is there current disability caused by VA treatment that is 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 rationale for the requested opinion should be provided. The physician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the physician rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The physician must provide a rationale for each opinion given. 2. Thereafter, readjudicate the issues on appeal. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252, 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).