Citation Nr: 1803352 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 12-30 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for adrenal insufficiency. 2. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for hypertension. 3. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for diabetes mellitus. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his Wife ATTORNEY FOR THE BOARD S. M. Stedman, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1974 to March 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In July 2013, the Veteran and his wife testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In April 2014, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, the Veteran's claim must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide his claim so he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c), (d) (2017). In the April 2014 remand, the Board instructed the AOJ to obtain records from July 1999 through the present. While VA treatment records for this period were obtained, the record merely notes that a lithotripsy was completed, the notes from the procedure, including whether or not informed consent was obtained for the procedure, have not been associated with the claims file. As the AOJ failed to obtain the specifically identified relevant evidence, there has not been compliance with the Board's April 2014 remand. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Remand is therefore required for further attempts to secure the report of testing. Additionally, the Board finds that an addendum medical opinion is required. Following the April 2014 remand, the Veteran underwent VA examinations to address his claims of entitlement under 38 U.S.C. § 1151 for adrenal insufficiency, hypertension, and diabetes mellitus. The April 2014 VA examiner opined that adrenal insufficiency, hypertension, and diabetes mellitus were not the result of chronic opiate treatment or his treatment for kidney stones (i.e., electro shock wave lithotripsy and stent placement). See April 2014 VA Examination Report. In addressing the Veteran's adrenal insufficiency, the examiner stated that adrenal insufficiency is not caused by opiate treatment. She went on to note that opiates may cause secondary adrenal insufficiency in some, but that in this Veteran his adrenal insufficiency was likely central as per note of endocrinology dated May 4, 2010. The examiner cited the May 4, 2010, note as follows: "His adrenal insufficiency could be central in nature since he has a history of traumatic brain injury from a motor vehicle accident, work-related head/neck injury in 1991, and a fall from a ladder in 5/2009. It could be also from prolonged steroids. Since his work-related injury in 1991 he has been on opiates including oxycodone and hydrocodone and Darvocet." On review of this treatment record, the Board notes that the May 2010 examiner initially indicated that the Veteran's adrenal insufficiency "could be" central in nature, which is speculative. This examiner also went on the state that the Veteran's adrenal insufficiency is likely central secondary to previous traumatic brain injury or chronic opiate use (emphasis added); see also July 3, 2012 Endocrinology Note. The April 2014 VA examiner also did not address the Veteran's contention that he was prescribed opiates for an unnecessary amount of time. See July 2013 Hearing Transcript (the Veteran testifying that a normal period of time to be prescribed opiates is three to four years). In regard to the Veteran's claims for hypertension and diabetes mellitus, the April 2014 examiner opined that these conditions were not the result of opiate treatment or treatment for kidney stones. The examiner rationalized that diabetes is not listed as a complication of lithotripsy. See April 2014 VA Examination Report. In making this determination, the examiner did not address or discuss the article submitted by the Veteran, which links lithotripsy to hypertension and diabetes mellitus as directed by the April 2014 remand. Accordingly, an addendum opinion must be obtained which addresses all pertinent evidence in compliance with the Board's previous remand. See Stegall, 11 Vet. App. at 271. Finally, as this matter is being remanded, the Veteran's updated VA treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Request from the Syracuse and Rome VAMCs a copy of any consent form(s) signed by the Veteran prior to his September 19, 2001 lithotripsy and subsequent stent placement. 2. Make arrangements to obtain all notes and records associated with the September 19, 2001 lithotripsy and subsequent stent placement procedures. 3. Make arrangements to obtain the Veteran's VA treatment records, dated from April 2014, forward. 4. Thereafter, the case should be referred to the April 2014 VA examiner for a supplemental opinion. If that examiner is not readily available, a VA opinion may be obtained by another medical professional with an appropriate background or expertise. The Veteran should not be scheduled for an examination unless deemed necessary by the VA medical professional rendering an opinion on this claim. The entire claims file must be reviewed by the examiner in conjunction with the opinion. The examiner should confirm in the examination report that he or she has reviewed the folder in conjunction with the supplemental opinion. The examiner should provide the following opinions: Adrenal Insufficiency a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's adrenal insufficiency manifested as a result of opiate treatment? In providing this opinion, the examiner should acknowledge and consider the July 3, 2012 endocrinology note stating the Veteran's adrenal insufficiency is likely secondary to previous traumatic brain injury or chronic opiate use, as well as the May 4, 2010 note stating that the Veteran's adrenal insufficiency is likely central secondary to previous traumatic brain injury or chronic opiate use. b) If the examiner determines that the opiate treatment resulted in adrenal insufficiency, he/she should provide an opinion as to whether it was caused by carelessness, negligence, lack of proper skill, error in judgment or fault on the part of VA. In providing this opinion, the examiner must acknowledge and consider the Veteran's contention that he was prescribed opiates for an abnormal period of time. See July 2013 Hearing Transcript (the Veteran testifying that a normal period of time to be prescribed opiates is three to four years). c) If the examiner determines that the opiate treatment resulted in adrenal insufficiency, he/she should also provide an opinion as to whether such additional disability was a reasonably foreseeable result of his opiate treatment, that is would a reasonable health care provider have considered the additional disability to be an ordinary risk of the treatment at issue? Diabetes Mellitus and Hypertension a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension and/or diabetes mellitus manifested as a result of his treatment for kidney stones, (i.e., electro shock wave lithotripsy and stent placement)? In providing this opinion, the examiner must acknowledge and consider the article "Shock wave therapy for kidney stones linked to increased risk of diabetes, hypertension," submitted by the Veteran in January 2010. b) If the examiner determines that the hypertension and/or diabetes mellitus manifested as a result of treatment for kidney stones, (i.e., electro shock wave lithotripsy and stent placement), was the additional disability caused by carelessness, negligence, lack of proper skill, error in judgement, or fault on the part of VA? c) If the examiner determines that the hypertension and/or diabetes mellitus manifested as a result of treatment for kidney stones, (i.e., electro shock wave lithotripsy and stent placement), was such additional disability a reasonable foreseeable result of his treatment for kidney stones, (i.e., electro shock wave lithotripsy and stent placement), that is, would a reasonable health care provider have considered the additional disability to be an ordinary risk of the treatment at issue? A supporting rationale for all opinions expressed must be provided. If the examiner is unable to provide any opinion as requested, the examiner should fully explain the reason why such opinion could not be rendered. 5. Finally, after completing any other development that may be indicated, readjudicate the claims on appeal. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ P. M. DILORENZO 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) (2017).