Citation Nr: 18149220 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 15-17 973 DATE: November 9, 2018 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for nerve damage in right arm and right upper torso is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1963 to April 1966. This matter comes before the Board of Veterans’ Appeal (Board) on appeal from a May 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In May 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) in a traveling board hearing. A transcript of the hearing is of record. 1. Entitlement to compensation under 38 U.S.C. 1151 for nerve damage in right arm and right upper torso is remanded. The Veteran contends that, on April 6, 2011, he went to the Lebanon VA Medical Center for routine blood draws and tests. During that visit, multiple blood draws were performed by a technician at the facility who forcibly administered them. The Veteran testified that, while the technician performed the blood draws, he complained of excruciating pain. As a result, he became lightheaded, suffered a severe headache, and his blood pressure dropped significantly. Thereafter, the Veteran went into cardiac arrest and was transported to the Hershey Medical Center for catherization. Following a series of hospitalization, the Veteran underwent a VA Examination in March 2013 which stated that he did not have any identified disabilities and that there was no mention of right arm discomfort at the April 6, 2011, blood draw. The Veteran contends that he did in fact complain about pain during the April 2011 blood draw and made subsequent complaints to the Lebanon VA Medical Center Patient Advocate. The Veteran insists that these records were intentionally removed from his medical record and will demonstrate a timeline of complaints about the injury incurred from the April 2011 blood draw. Furthermore, the Veteran stated that he learned from medical testing over time that he has acquired trauma-induced reflex sympathetic dystrophy (RSD) syndrome because of the injury to his arm. See May 2018 Hearing Transcript. The Veteran submitted a May 16, 2018, medical record from the Heartland Family Health Center which provides a diagnosis of RSD and references the April 6, 2011, blood draw as the onset of the Veteran’s complaints of pain in the right arm and right upper chest. However, this medical opinion is inadequate for adjudication purposes as it fails to provide a rationale for the Veteran’s RSD, specifically as it relates to the blood draw on April 6, 2011. Under 38 U.S.C. § 1151(a)(1), compensation shall be awarded for a qualifying additional disability of a Veteran in the same manner as if such additional disability were service connected. A disability is a qualifying additional disability if it was not the result of the Veteran’s willful misconduct and, in relevant part, was caused by medical care furnished to the Veteran by the VA. The proximate cause of the disability must be either carelessness, negligence, lack of proper skill, error in judgment, or similar instance of the fault on the part of the VA, or an event not reasonably foreseeable. The Veterans Claims Assistance Act of 2000 (VCAA) requires the VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. See 38 U.S.C. § 5103A (2012); 38 C.F.R. §§ 3.159 (c), (d) (2017). This duty to assist contemplates that VA will help a claimant obtain records relevant to the claim and that VA will provide a medical examination or obtain an opinion when necessary to decide the claim. See 38 C.F.R. § 3.159 (c)(4) (2017). The evidence of record includes service treatment records, service personnel records, VA treatment records, private treatment records, statements of the Veteran, and lay statements. With respect to the duty to assist, the Veteran provided testimony concerning missing records from the Patient Advocate at the Lebanon VA Medical Center. The record lacks any evidence concerning the Veteran’s complaint during or shortly after the April 2011 incident. The Veteran asserts that he made two formal complaints to the Lebanon VA Patient Advocate about the quality of the blood draw during the April 2011 incident. Additionally, the Veteran submitted a June 2011 buddy statement and testimony at the hearing from T.A. who experienced the same or a similar incident at the Lebanon VA Medical Center and went with the Veteran to file both complaints. The Board believes that the missing records might contribute to the nexus element of the Veteran’s claim and are pertinent to the underlying issue. Furthermore, the Board finds that on remand the RO should assist the Veteran in obtaining all relevant records not already associated with the claims file since April 2011 from the Lebanon VA Medical Center. The duty to assist is further evoked as the Board finds that this matter should be remanded to permit the Veteran to undergo a VA examination that takes into consideration the diagnosis provided on May 16, 2018. The last VA examination of record from March 2013, found that there were no complaints from the Veteran concerning the April 2011 incident, nor was there an identified disability. The Boards believes that a current examination is necessary to address the Veteran’s current diagnosed disability (RSD) and determine the etiology of his disability, as the diagnosis provided by a private physician lacks such information. The matter is REMANDED for the following action: 1. To obtain all outstanding records, not already included in the record, from the Lebanon VA Medical Center pertaining to the Veteran and the blood draw that occurred on April 6, 2011. Special attention should be placed on identifying and obtaining records from the resident patient advocate at the Lebanon VA Medical Center. Upon receipt of the requested information and the appropriate releases, the information should be submitted to become a part of the Veteran’s medical record. Follow appropriate steps if the requested evidence cannot be obtained. 2. Schedule a VA examination and obtain an opinion from an appropriate VA medical professional relating to the treatment of the Veteran’s RSD. The claims file must be provided to and reviewed by the examiner. After reviewing the claims file and examining the Veteran, the examiner should respond to the following: a) Identify all currently diagnosed disorders as it relates to the Veteran’s right arm and upper right chest. In doing so, the examiner should note that the term “current” means occurring at any time during the pendency of the Veteran’s claim; from July 2012 onward. b) With respect to each diagnosed disorder, the examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that such was caused or aggravated by the VA’s carelessness, lack of proper skill, and/or similar instance of fault during the April 6, 2011, blood draw. The examiner must provide an opinion as to whether VA health care providers failed to exercise the degree of care that would be expected of a reasonable health care provider, either through action or inaction? In providing this opinion, the examiner must compare the Veteran’s condition immediately before the beginning of the April 2011 blood draw provided by the VA to that of the Veteran’s condition after such care or treatment. c) If it is found that the disability was caused by or aggravated by a failure on VA’s part to properly treat the Veteran, was the disability an event not reasonably foreseeable? When addressing whether there was an event not reasonably foreseeable, the examiner must focus on what a reasonable health care provider would have foreseen, and not whether the specific event was foreseen. If the examiner is unable to provide an opinion without resort or speculation, he or she should explain why this is so and what, if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion rendered. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Smith, Associate Counsel