Citation Nr: 1805287 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 14-12 102 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to compensation for a colon condition under the provisions of 38 U.S.C. § 1151. 2. Entitlement to service connection for a colon condition, on both a direct and secondary basis. 3. Entitlement to compensation for Factor VII deficiency under the provision of 38 U.S.C. § 1151. 4. Entitlement to service connection for Factor VII deficiency, on both a direct and secondary basis. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from February 1974 to April 1974, and from July 1991 to March 1992. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In May 2016 correspondence, the Veteran withdrew his claim for entitlement to a total disability evaluation based on individual unemployability and this matter is no longer on appeal. In June 2017, the Veteran testified at a video conference hearing before the undersigned; a transcript of that hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). The Veteran seeks compensation for a colon condition and Factor VII deficiency, and has articulated three theories of entitlement. He claims that (1) medication-specifically nonsteroidal anti-inflammatory drugs (NSAIDS)-prescribed during service caused him to develop both disabilities; (2) NSAIDS prescribed to treat his service-connected disabilities caused or aggravated both disabilities; and (3) that VA was negligent in prescribing NSAIDS post-service, and that compensation for both disabilities should be awarded under the provisions of 38 C.F.R. § 1151. Although a VA examiner, in February 2014, opined that the Veteran's use of NSAIDS to treat his service-connected ankle problems did not cause colon disabilities or his Factor VII deficiency, the VA examiner did not address whether or not such medication aggravated the Veteran's colon condition and/or factor VII deficiency. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) A review of the record reflects that the Veteran was initially prescribed NSAIDS in service for his service-connected ankle condition and continued to be prescribed NSAIDS post service. Service treatment records document a left ankle injury in August 1991 and a prescription of 800 mg of Motrin being prescribed in October 1991 and January 1992 for his left ankle sprain. A January 1992 record from the Medical Evaluation Board (MEB) noted that the Veteran used numerous NSAIDS for his painful left ankle injury. Post service VA treatment records show that the Veteran was prescribed 500 mg of Acetaminophen four times a day from July to August 1996 and Ibuprofen 800 mg three times a day from May to June 1997. On an October 1998 VA examination, the Veteran reported a history of being prescribed Motrin, but not taking it because it made his urine malodorous and cloudy. He reported that he did use Tylenol. The Veteran was prescribed Meloxicam (NSAIDS) in February 2011. A March 2011 VA treatment record noted that the Veteran needed to avoid NSAIDS/ASA (acetylsalicylic acid/aspirin) due to Factor VII deficiency. During his hearing, the Veteran reported that VA prescribed him with Motrin, Ibuprofen in July 2011. In light of the record documenting in-service and post service prescription of NSAIDS, post service complaints associated with taking Motrin, and medical documentation to avoid taking NSAIDS/ASA due to his Factor VII deficiency, a new opinion is necessary. During his hearing, the Veteran reported that VA prescribed Motrin, Ibuprofen, 800 mg as recently as in July 2011; however, such record has not been associated with the claims file. While on remand, the VA should obtain all outstanding, pertinent private and VA treatment records, to include VA treatment records from July 2011 to the present. Accordingly, the case is REMANDED for the following action: 1. Obtain complete VA treatment records from July 2011 to the present, including any documentation of the Veteran being prescribed Motrin, Ibuprofen, 800 mg in July 2011. 2. Provide the Veteran the opportunity to submit, or authorize VA to obtain on his behalf any records of treatment the Veteran may identify as relevant to his claims that are not already on file. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for physician with appropriate expertise to review the Veteran's file and provide medical opinions as to each of the following questions: (A) Is it at least as likely as not (a 50 percent or greater probability) that any existing colon condition and/or Factor VII deficiency had its onset in, or is otherwise related to the Veteran's period of service, to specifically include the prescription of NSAIDs during service? (B) Notwithstanding the answer to (A), is it at least as likely as not that post-service VA prescription of NSAIDS to treat the Veteran's service-connected disabilities caused or aggravated the Veteran's colon condition and/or his Factor VII deficiency beyond its natural progression? **If it is more likely that treatment for service-connected disabilities alone would not have caused or aggravated the Veteran's colon condition and/or his Factor VII deficiency, is it at least as likely as not that VA prescription and use of NSAIDS to treat any/all his post-service disabilities (whether service-connected or not) caused or aggravated the Veteran's colon condition and/or his Factor VII deficiency? (C) If the answer to either question in (B) is "yes" for either a colon condition or for Factor VII deficiency, was the additional disability caused by carelessness, negligence, lack of proper skill, error in judgment, or fault on the part of VA? In doing so, address the March 2011 VA treatment record noting that the Veteran needed to avoid NSAIDS/ASA due to Factor VII deficiency and any VA treatment records reflecting that the Veteran was prescribed NSAIDS/ASA. (D) If an additional colon condition or Factor VII deficiency at least as likely as not was caused or aggravated by VA's prescription of NSAIDS post-service, also provide an opinion as to whether such was a reasonably foreseeable result of the VA's prescribed NSAIDS-that is, would a reasonable health care provider have considered the additional disability to be an ordinary risk of the treatment(s) at issue? In answering the above questions, attention is called to the following: (i) Service treatment records dated from August 1991 through January 1992 documenting the Veteran being prescribed Motrin 800 mg to treat his in-service left ankle injury. (ii) VA treatment records dated in July to August 1996 and May to June 1997 documenting prescriptions of Acetaminophen (500 mg) and Ibuprofen (800 mg); (iii) October 1998 VA examination report indicating that the Veteran stopped taking Motrin because malodorous and cloudy urine, but continued to take Acetaminophen; (iv) February 2011 prescription of Meloxicam; (v) March 2011 VA treatment record noting that the Veteran needed to avoid NSAIDS/ASA due to Factor VII deficiency; (vi) The February 2014 VA examiner's opinion; (vi) The Veteran's testimony indicating that that VA prescribed him with Motrin, Ibuprofen in July 2011; and (vii) Any additional relevant evidence received on remand. The examiner should provide a complete rationale for the opinions, whether favorable or unfavorable, and cite to specific evidence of the record, as necessary. 4. After completing the above actions, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the benefits sought on appeal remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). 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 (West 2012). _________________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.§ 7252 (West 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).