Citation Nr: 1806078 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 14-30 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for any colon condition as secondary to kidney condition and also claimed under 38 U.S.C.A. § 1151 compensation for disability from hospitalization, medical or surgical treatment. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. A Board videoconference hearing was held July 2017 before the undersigned Veterans Law Judge (VLJ). The transcript is of record. The statement of the issue on appeal as indicated upon the title page, is consistent with how the Regional Office described the matter, as literally two separate bases of entitlement - (1) service connection for a colon condition as secondary to a kidney disorder; and (2) eligibility for section 1151 compensation for that same claimed colon condition. The Veteran has repeatedly stated through continuous averments (upon his original claim, Notice of Disagreement (NOD) with the adverse Regional Office rating decision, and finally Substantive Appeal to the Board (VA Form 9)) that he wants to pursue just the section 1151 theory of entitlement. For purpose of comprehensiveness, both theories will be considered. With regard the first averred theory, there is a recent medical opinion providing crucial evidentiary support, if not directly on point regarding a claimed colon condition as having developed secondary to kidney cancer. The January 2018 VA medical examination and opinion competently opines that the Veteran's kidney cancer at least as likely as not originally developed due to hazardous exposure from water contamination during the time period the Veteran was stationed at Camp Lejeune. The Board therefore finds reasonably inferred an underlying claim of service connection for kidney cancer. That very claim was previously denied. Consequently, there is a new claim raised which is that of whether there has been new and material evidence to reopen the previously denied matter of service connection for kidney cancer. This newly raised claim is inextricably intertwined with existing issues, and must be adjudicated by the AOJ in the first instance, provided that the claim is submitted on the application form prescribed by the Secretary. See 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2017); DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011) (where evidence reasonably indicates that the cause of claimed condition is a different condition that may be associated with service, then VA must investigate whether the underlying disability is related to service). The Veteran is hereby informed that in order to have the underlying matter of a petition to reopen service connection for kidney cancer adjudicated in the first instance, the above indicated VA formal claim form should be completed and filed. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND As indicated, the record raises a claim for a petition to reopen service connection for kidney cancer. Provided that a claim for this disorder is submitted upon the corresponding VA application form, the AOJ must adjudicate this claim in the first instance because it directly impacts the remaining matter already on appeal, and is therefore inextricably intertwined with the claim on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thereafter, the AOJ can proceed to the instant matter, whether a colon condition developed secondary to the kidney disorder. On the second part of the claim on appeal, section 1151 compensation for a colon condition arising out of prior nephrectomy surgery in October 2011, the existing medical record is incomplete. The Veteran underwent a March 2016 VA examination report which provided an unfavorable opinion in this regard. The Board finds that a better VA opinion on the fundamental issues pertinent to section 1151 eligibility should be obtained. To be awarded compensation under section 1151, the claimant must show that VA treatment (or other qualifying event) resulted in additional disability, and further, that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of the disability was an event which was not reasonably foreseeable. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. See also VAOPGCPREC 40-97 (Dec. 31, 1997), 63 Fed. Reg. 31,262 (1998). Specifically, and assuming that the Veteran has additional disability as a consequence of his instance of VA treatment (which exists here), the Board turns to the key requirement of demonstrating causation. In order to establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the veteran's additional disability. If it is shown merely that a claimant received medical care or treatment, and has an additional disability, that in and of itself would not demonstrate actual causation. 38 C.F.R. § 3.361(c)(1). Also, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment or other instance of fault proximately caused the additional disability, it must be shown that VA failed to exercise the degree of care expected by a reasonable treatment provider, or furnished the treatment at issue without informed consent. 38 C.F.R. § 3.361(d)(1). Proximate cause may also be established where the additional disability was an event not reasonably foreseeable, based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable, but must be one that a reasonable medical provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider the type of risk that a reasonable health care provider would have disclosed as part of the procedures for informed consent (in accordance with 38 C.F.R. § 17.32). 38 C.F.R. § 3.361(d)(2). In view of these requirements the Veteran should undergo a new examination, as the prior examination did not address foreseeability as a component of proximate cause. Moreover, the VA medical records underlying that opinion (including the nephrectomy procedure) are not on file, and must be obtained. The prior examiner has electronic access to those records. However, they should be made available for the Board's independent review. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's VA inpatient treatment records from the Philadelphia VA Medical Center (VAMC) pertaining to an October 2011 left nephrectomy procedure, and associate these records 2. Schedule the Veteran for a VA examination regarding his claim for compensation benefits under 38 U.S.C.A. § 1151. The claims file must be made available for the examiner to review, and the examiner should confirm this review was completed. The examination should initially indicate whether it is at least as likely as not (i.e., 50 percent or greater probability) the Veteran has additional disability resulting from the October 2011 VAMC left nephrectomy procedure. If the Veteran does, then please also indicate: (a) whether the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the surgical treatment provided; or (b) whether the proximate cause of the additional disability was an event not reasonably foreseeable. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Review the claims file. If the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 4. Readjudicate the matter on appeal based upon all evidence of record. If the benefit sought on appeal is not granted, then the AOJ should issue a Supplemental Statement of the Case (SSOC) to the Veteran, and afford him an opportunity to respond. Then return the case to the Board for further appellate review and consideration. The Veteran 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). _________________________________________________ D. Martz Ames 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).