Citation Nr: 18144546 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-35 919 DATE: October 24, 2018 REMANDED Entitlement to service connection for bilateral finger condition (middle fingers to the small digits) is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for radiation poison and sickness is remanded. Entitlement to a total rating based on individual unemployability (TDIU) due to service connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1975 until July 1977. These appeals come to the Board of Veterans' Appeals (Board) from the February 2010 and October 2013 rating decisions. 1. Entitlement to service connection for bilateral finger condition (middle fingers to the small digits) is remanded. The Board notes that the Veteran was not provided a VA medical opinion in regard to his claimed bilateral finger condition. VA's duty to assist requires it to provide an adequate medical examination and/or obtain a medical opinion if the evidence is not sufficient to decide the claim. However; in order for the duty to assist to be triggered, the following must be present: (A) competent lay or medical evidence of a current disability, persistent, or recurrent symptoms of a disability, (B) evidence establishing the Veteran suffered an event, injury, or disease or symptoms of a disease, and (C) evidence indicating that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. 38 C.F.R. § 3.159 (c)(4)(i). The Board finds that the requirements have been met in order to trigger the VA's duty to assist for the reasons stated below. In this case, without adequate medical examinations and medical opinion regarding to the Veteran's claimed condition, the Board finds the current evidence to be insufficient to decide the claim. Therefore, VA medical examinations and medical opinions are required by VA's duty to assist the Veteran in developing evidence to substantiate his claim to service connection. 2. Entitlement to compensation under 38 U.S.C. § 1151 for radiation poison and sickness is remanded. In regard to the Veteran's claim for compensation under 38 U.S.C. § 1151 for radiation poison and sickness, the Board finds that an opinion is necessary. The Veteran has asserted that he has experienced an additional disability due to VA treatment. Specifically, the Veteran contends that during treatment at the Philadelphia VAMC he experienced an overdose of radiation and now has a condition related to radiation poison. Under 38 U.S.C. § 1151, compensation shall be awarded for a qualifying additional disability or a qualifying death of a Veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the Veteran's willful misconduct and the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151. In determining whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the Veteran's condition after such care or treatment. 38 C.F.R. § 3.361 (b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the Veteran's additional disability. Merely showing that a Veteran received care or treatment and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361 (c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361 (c)(2). To establish that 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 proximately caused a Veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the Veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361 (d)(1). Whether the proximate cause of a Veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined 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 health care 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 whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361 (d)(2). The claims folder does not consist of a medical opinion as to whether the Veteran has an additional disability as a result of VA medical care based on carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in furnishing the hospital care, medical or surgical treatment, or examination; or that the Veteran's subsequent disability was an event not reasonably foreseeable. As such, the Board finds that a medical opinion in necessary prior to adjudicating the claim. 3. Entitlement to TDIU is remanded. The Board has considered the question of whether the Veteran would be prejudiced by considering the appeal for TDIU while remanding the other issues on appeal. Specifically, the Board questions whether the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As the outcome of the claims on being remanded could have a significant impact on the Veteran's appeal for entitlement to TDIU, the Board finds these matters inextricably intertwined. The Board also notes that an undecided issue "inextricably intertwined" with an issue certified for appeal must be adjudicated prior to appellate review. Thus, the issue for entitlement to TDIU must be remanded. The matters are REMANDED for the following action: 1. Request the appellant to identify all medical providers (VA and private) from whom he has received treatment for his claimed conditions; complete and return a provided VA Form 21-4142, Authorization and Consent to Release Information, for the identified treatment records. Additionally, request the Veteran identify the month and year in which he received medical treatment from the Philadelphia VAMC that resulted in the claimed additional disability. After obtaining completed VA Forms 21-4142, the AOJ should attempt to obtain all identified pertinent medical records and associate them with the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's claimed bilateral finger condition. The examiner must opine whether it is at least as likely as not that the Veteran has any finger condition related to an in-service injury, event, or disease. 3. Obtain an opinion from an appropriate physician to determine whether the Veteran suffers from additional disability as a result of treatment received by VA treatment providers in the Philadelphia VAMC. The physician should opine as to whether it is at least as likely as not that the Veteran has an additional disability as a result of the any treatment received at VAMC Philadelphia. If so, what is the additional disability? If it is at least as likely as not that there is an additional disability, is it at least as likely as not (50 percent or greater probability) that the additional disability was (i) caused by carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA in performing treatment, or (ii) was due to an event not reasonably foreseeable? In other words, did any action or inaction by VA caregivers cause an additional disability and constitute carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault? Did VA fail to exercise the degree of care that would be expected of a reasonable health care provider? 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. 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. A clear rationale for any opinions expressed and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If any of the requested opinions cannot be provided without resorting to speculation, the examiner should   state so and explain why such an opinion cannot be provided. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brandon A. Williams, Counsel