Citation Nr: 18143099 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 14-39 292 DATE: October 18, 2018 REMANDED Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residuals of a failed nerve block, to include sharp pains in the right leg, buttock, and foot, is remanded. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for an incisional hernia as a result from a L4-L5 disc implant is remanded. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for ulcers, H. pylori, and colitis as a result from over-prescribing Ibuprofen is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1980 to August 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in December 2011 by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2014, the Veteran and L.S. testified at a hearing before a Decision Review Officer (DRO) and in February 2018, the Veteran, L.S., and Dr. C.B. testified at a Board hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are associated with the record. At such time, the undersigned held the record open for 60 days for the submission of additional evidence, which was received in April 2018. 38 U.S.C. § 7105(e)(1). As an initial matter, the Board notes that the record indicates that the Veteran is receiving social security benefits. In this regard, VA has a duty to obtain Social Security Administration (SSA) records when it has actual notice that the Veteran has applied for SSA benefits. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, on remand, the Veteran’s complete SSA records, including all administrative decision(s) on his application for SSA disability benefits and all underlying medical records should be obtained. Additionally, while the Veteran has submitted numerous VA treatment records and the RO has obtained such records from the Phoenix VA Medical Center (VAMC) for the period of March 2007 to December 2009, the Board finds that a remand is necessary in order to obtain all VA treatment records from the San Diego VAMC and Phoenix VAMC not already associated with the Veteran’s claims file. 1. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residuals of a failed nerve block, to include sharp pains in the right leg, buttock, and foot. The Veteran contends that he incurred an additional disability of right lower extremity (RLE) sciatica as a result of a September 2007 lumbar epidural steroid injection due to the improper care and treatment by VA. Specifically, at the February 2018 Board hearing, he testified that, while he signed a consent form acknowledging the risks associated with such injection, the procedure was not done with a fluoroscopy. Rather, a VA resident instead free-handed the injection. At such hearing, Dr. C.B. also stated that a resident may not have been the best trained person to perform such procedure, and most patients would not have sciatica resulting from a nerve block. The Veteran’s treatment records indicate that he has received treatment for lumbar radiculopathy. Specifically, in November 2007, he reported that he had sciatica pain that radiated posteriorly down his right leg more than his left and had weakness in his right leg. In a June 2008 treatment record, the Veteran also reported that his current symptoms included right sciatic pain since receiving his latest epidural and, prior to that, he was having mostly left-sided symptoms. Thus, the Board finds that remand is necessary to obtain a VA examination and opinion to determine whether the Veteran has an additional disability, to include RLE radiculopathy, as a result of his September 2007 lumbar epidural steroid injection by VA, and, if so, whether such was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part, or due to an event not reasonably foreseeable. 2. Entitlement to compensation under the provisions of 38 U.S.C. 1151 for an incisional hernia as a result from a L4-L5 disc implant. The Veteran contends that he incurred an additional disability of an incisional hernia as a result of a November 2008 anterior lumbar interbody fusion (ALIF) due to the improper care and treatment by VA. Specifically, he alleges that VA should not have used a Medtronic infuse device that had been recalled by the U.S. Food and Drug Administration (FDA). He further claims that there was a mistake made during surgery that caused his peritoneum to tear and, thereafter, his hernia was further aggravated by aggressive physical therapy. The Veteran also alleges that VA failed to treat his hernias in a timely manner and terminated his care. In this regard, a June 2009 treatment record noted that the Veteran had spine surgery in November 2008 with an anterior approach and that the area the Veteran referred to as his hernia was located above the umbilicus, just right of the midline. The Veteran stated that, while he was undergoing kinesiotherapy (KT) as part of his physical therapy, the area protruded and was as large as his fist and had a burning sensation. An assessment of a ventral hernia was found. In September 2009, the Veteran was referred to general surgery clinic for a symptomatic incisional hernia and was scheduled for a repair of his symptomatic ventral hernia in November 2009. However, the Veteran underwent an incisional hernia repair in September 2009, performed by Dr. J.S, who found three incisional hernia defects involving the superior portion of the Veteran’s midline abdominal incision. Furthermore, at the February 2018 Board hearing, Dr. C.B. stated that an incision hernia was a known, but rare, complication of such surgery and was not the standard outcome. Thus, the Board finds that a remand is necessary to obtain a VA examination and opinion to determine whether the Veteran has an additional disability, to include an incisional hernia, as a result of his November 2008 AILF by VA and, if so, whether such was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part, or due to an event not reasonably foreseeable. 3. Entitlement to compensation under 38 U.S.C. 1151 for ulcers, H. pylori, and colitis as a result from over-prescribing Ibuprofen. The Veteran contends that he incurred an additional disability of ulcers, H. pylori, and colitis as a result of VA over-prescribing Ibuprofen. Specifically, he alleges that he was instructed to take 800 milligrams (mg) of Ibuprofen three times per day for over a three-year period, which led to the development of ulcers, H-pylori, and severe colitis after VA failed to treat or refer him for a colonoscopy after a positive occult test. In this regard, the Veteran’s medications included Ibuprofen 800 mg tab to be taken three times a day to control pain and inflammation from April 30, 2007, to April 30, 2008. In March 2007, the Veteran reported gastrointestinal problems, but an August 2007 fecal occult blood test indicated negative results. Thereafter, an October 2009 laboratory report noted that a fecal occult blood test detected fecal global. In a February 2010 VA treatment report, the Veteran underwent an esophagogastroduodenoscopy (EGD) with biopsies and a colonoscopy to terminal ileum with biopsies, which indicated that he had ulcers. The clinician also commented that there were no histological features of chronicity and the histological findings were nonspecific, and the differential diagnosis included drug-effect (i.e. NSAIDs) or an infectious etiology. In October 2010, the Veteran was seen for a follow-up regarding occult blood in stools, and the doctor noted that, in retrospect, both upper gastrointestinal and colonic ulcers may be due to taking Ibuprofen 800 mg five times a day. The Veteran noted that such statement should read as three times a day instead of five. Nonetheless, the Board finds that a remand is necessary to obtain a VA examination and opinion as to whether the Veteran has an additional disability, to include ulcers, H. pylori, and colitis, as a result of over-prescribing Ibuprofen and, if so, whether such was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part, or due to an event not reasonably foreseeable. The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete SSA records, including all administrative decision(s) on his application for SSA disability benefits and all underlying medical records, which are in SSA’s possession. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159 (e). 2. Obtain any outstanding VA treatment records from VAMC in San Diego, California and Phoenix, Arizona from January 2007 to present. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159 (e). 3. After all outstanding records have been obtained, the Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his RLE sciatica/radiculopathy. All indicated tests and studies should be undertaken. The record, including a complete copy of this remand, must be made available to and be reviewed by the examiner. Thereafter, the examiner should respond to the following: (A) Is it at least as likely as not (50 percent or greater probability) that the Veteran has an additional disability, to include RLE sciatica/radiculopathy, that was caused or aggravated by the lumbar epidural steroid injection rendered by VA in September 2007? If so, please detail the nature of such disability. (B) If the Veteran has an additional disability, such as RLE sciatica/radiculopathy, related to his VA lumbar epidural steroid injection in September 2007, is it at least as likely as not (50 percent or greater probability) that such additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care, medical or surgical treatment, or examination? The examiner should specifically address the Veteran’s contention that a fluoroscopy should have been used during the September 2007 lumbar epidural steroid injection, and such should not have been completed by a resident. (C) If the Veteran has an additional disability, such as RLE sciatica/radiculopathy, related to his VA lumbar epidural steroid injection in September 2007, is it at least as likely as not (50 percent or greater probability) that such additional disability was due to an event not reasonably foreseeable? A “not reasonably foreseeable” event is one that would not be reasonably anticipated or expected by a health care provider who utilized the degree of care a prudent or competent person so engaged would exercise. A rationale for any opinion offered should be provided. 4. The Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his incisional hernia. All indicated tests and studies should be undertaken. The record, including a complete copy of this remand, must be made available to and be reviewed by the examiner. Thereafter, the examiner should respond to the following: (A) Is it at least as likely as not (50 percent or greater probability) that the Veteran has an additional disability, to include an incisional hernia, that was caused or aggravated by the ALIF rendered by VA in November 2008? If so, please detail the nature of such disability. (B) If the Veteran has an additional disability, such as an incisional hernia, related to his ALIF in November 2008, is it at least as likely as not (50 percent or greater probability) that such additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care, medical or surgical treatment, or examination? The examiner should specifically address the Veteran’s contention that a Medtronic infuse device recalled by the FDA should not have been used for his November 2008 ALIF, there was a mistake made during surgery that caused his peritoneum to tear and, thereafter, his hernia was further aggravated by aggressive physical therapy, and VA failed to properly treat his hernia in a timely manner. (C) If the Veteran has an additional disability, such as an incisional hernia, related to his VA ALIF in November 2008, is it at least as likely as not (50 percent or greater probability) that such additional disability was due to an event not reasonably foreseeable? A “not reasonably foreseeable” event is one that would not be reasonably anticipated or expected by a health care provider who utilized the degree of care a prudent or competent person so engaged would exercise. A rationale for any opinion offered should be provided. 5. The Veteran should be afforded an appropriate VA examination to the nature and etiology of his ulcers, H. pylori, and colitis. All indicated tests and studies should be undertaken. The claims file, including a complete copy of this remand, must be made available to and be reviewed by the examiner. Thereafter, the examiner should respond to the following: (A) Is it at least as likely as not (50 percent or greater probability) that the Veteran has an additional disability, to include ulcers, H. pylori, and colitis, that was caused or aggravated by VA prescribing 800 mg of Ibuprofen three times a day for a three year period? If so, please detail the nature of such disability. (B) If the Veteran has an additional disability, such as ulcers, H. pylori, and colitis, related to his prescription of 800 mg of Ibuprofen, is it at least as likely as not (50 percent or greater probability) that such additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care, medical or surgical treatment, or examination? The examiner should specifically address the Veteran’s contention that VA failed to treat or refer him for a colonoscopy after a positive occult test. (C) If the Veteran has an additional disability, such as ulcers, H. pylori, and colitis, related to his VA prescription of 800 mg Ibuprofen, is it at least as likely as not (50 percent or greater probability) that such additional disability was due to an event not reasonably foreseeable? A “not reasonably foreseeable” event is one that would not be reasonably anticipated or expected by a health care provider who utilized the degree of care a prudent or competent person so engaged would exercise. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Clark, Associate Counsel