Citation Nr: 18148282 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-41 879 DATE: November 7, 2018 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for eczema and pooling blood under the skin, claimed as due to Department of Veterans Affairs (VA) lack of proper care/negligence in providing surgical treatment in January 2012, is denied. REMANDED Entitlement to service connection for herpes is remanded. FINDINGS OF FACT 1. The record evidence shows that the Veteran, without good cause, failed to report for VA examination scheduled in April 2015 for the purpose of determining his entitlement to compensation under 38 U.S.C. § 1151 for eczema and pooling blood under the skin. 2. The record evidence shows that, following a radical prostatectomy in January 2012, the Veteran did not experience any additional disability due to his claimed eczema and pooling blood under the skin which was proximately due to or the result of VA carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in furnishing reasonable care, or to an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation for eczema and pooling blood under the skin, claimed as a result of VA surgical treatment in January 2012, under the provisions of 38 U.S.C. § 1151, have not been met. 38 U.S.C. §§ 1151, 5107 (West 2012); 38 C.F.R. §§ 3.159, 3.361, 3.655 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from August 1968 to August 1972. The Board notes that the Veteran failed to report for VA examination scheduled in April 2015 for the purpose of determining his entitlement to compensation under 38 U.S.C. § 1151 for eczema and pooling blood under the skin. Neither the Veteran nor his service representative has presented good cause for his failure to report for this examination. The regulations governing VA compensation benefits provided that, where a Veteran, without good cause, fails to report for examination scheduled in connection with an original claim, that claim will be adjudicated on the record evidence. Accordingly, the Veteran’s claim of entitlement to compensation under 38 U.S.C. § 1151 for eczema and pooling blood under the skin, claimed as due to VA lack of proper care/negligence in providing surgical treatment in January 2012, will be adjudicated on the record evidence. See 38 C.F.R. §§ 3.655(a)-(b) (2017). 1. Entitlement to compensation under 38 U.S.C. § 1151 for eczema and pooling blood under the skin, claimed as due to VA lack of proper care/negligence in providing surgical treatment in January 2012 The Board finds that the preponderance of the evidence is against granting the Veteran’s claim of entitlement to compensation under 38 U.S.C. § 1151 for eczema and pooling blood under the skin, claimed as due to VA lack of proper care/negligence in providing surgical treatment in January 2012. The Veteran essentially contends that he is entitled to compensation under 38 U.S.C. § 1151 because he experienced eczema and pooling blood under the skin following a radical prostatectomy at a VA medical center in January 2012. He also essentially contends that, but for VA negligence/lack of care in providing him with surgical treatment in January 2012, he would not have experienced either of his claimed additional disabilities of eczema and pooling of blood under the skin. The record evidence does not support the Veteran’s assertions. It shows instead that he did not experience any additional disability following VA prostate surgery in January 2012, to include eczema and pooling of blood under the skin, which could be attributable to this surgery or any VA negligence/lack of care in providing him with surgical treatment. The Board notes initially that, because the Veteran, without good cause, failed to report for VA examination scheduled in April 2015 for the purpose of determining his entitlement to additional compensation under 38 U.S.C. § 1151 for eczema and pooling blood under the skin, this claim will be adjudicated on the record evidence. See 38 C.F.R. §§ 3.655(a)-(b) (2017). The Board acknowledges that the Veteran had a radical prostatectomy at a VA medical center in January 2012. A review of the Veteran’s VA surgical treatment records dated in January 2012 shows that he signed an informed consent form prior to this surgery and bleeding was listed as one of the known risks or complications of a prostatectomy. These records do not show that the Veteran experienced any post-surgical complications. A review of the Veteran’s post-service VA outpatient treatment records shows that, following his prostatectomy in January 2012, he did not complain of or seek treatment for eczema or for pooling blood under the skin. The Board again notes that the Veteran failed to report for VA examination scheduled in April 2015 for the purpose of determining his entitlement to compensation under 38 U.S.C. § 1151 for eczema and pooling blood under the skin. Neither the Veteran nor his service representative has presented good cause for his failure to report for this examination. Evidence which was expected to be obtained from this examination could not be obtained. The Board observes here that the Court has held that a Veteran must be prepared to meet his obligations by cooperating with VA efforts to provide an adequate medical examination. See Olson v. Principi, 3 Vet. App. 480 (1992). The Veteran essentially contends that, following a radical prostatectomy in January 2012, he developed eczema and pooling blood under the skin which were the result of VA negligence/lack of care during surgery. The record evidence does not support his assertions. It shows instead that the Veteran did not experience any post-surgical complications which could be attributable to VA negligence/lack of care at the time of his January 2012 prostatectomy. The Board finds it highly persuasive that the Veteran’s post-service VA outpatient treatment records show no complaints of or treatment for eczema or pooling blood under the skin following his January 2012 prostatectomy. This persuasively suggests that the Veteran did not experience either of the additional disabilities which he asserts were an unforeseeable outcome of his radical prostatectomy in January 2012 or otherwise resulted from VA negligence/lack of care in providing him with surgical treatment. The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to compensation under 38 U.S.C. § 1151 for eczema and pooling blood under the skin, claimed as due to VA lack of proper care/negligence in providing surgical treatment in January 2012. In summary, the Board finds that the criteria for entitlement to compensation under 38 U.S.C. § 1151 for eczema and pooling blood under the skin, claimed as due to VA lack of proper care/negligence in providing surgical treatment in January 2012, have not been met. REASONS FOR REMAND 1. Entitlement to service connection for herpes is remanded. The Veteran essentially contends that he incurred herpes during active service and experienced continuous disability due to his claimed herpes since his service separation. A review of the Veteran’s service treatment records shows no complaints of or treatment for herpes, although this is not necessarily fatal to his service connection claim. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). A review of the Veteran’s post-service VA treatment records shows that he has reported consistently a medical history of herpes. Following his VA prostate surgery in January 2012, the Veteran was advised to resume taking medications prescribed to treat his herpes. This persuasively suggests that the Veteran has been diagnosed as having and treated for herpes since his service separation although it may have resolved since 2012. The Board observes in this regard that service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Board also observes that VA’s duty to assist includes providing an examination where necessary. Accordingly, the Board finds that, on remand, the Veteran should be scheduled for appropriate examination to determine the nature and etiology of his claimed herpes. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of any herpes. The claims file should be provided for review. If, and only if, the Veteran fails to report for this examination, then a copy of the examination notice letter should be associated with the claims file. The examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that herpes, if diagnosed, is related to active service or any incident of service. A rationale also should be provided for any opinions expressed. The examiner is advised that the absence of contemporaneous records showing complaints of or treatment for herpes, alone, is insufficient rationale for a medical nexus opinion. 2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel