Citation Nr: 18149527
Decision Date: 11/09/18	Archive Date: 11/09/18

DOCKET NO. 15-31 517
DATE:	November 9, 2018
REMANDED
Entitlement to compensation under 38 U.S.C. § 1151 for fecal incontinence is remanded.
REASONS FOR REMAND
The Veteran’s claim arose from a September 2010 colonoscopy that was performed by a non-VA physician in a non-VA facility based on a referral by VA due to inadequate VA capacity. 
Entitlement to compensation under 1151 for fecal incontinence is remanded.
The January 2014 rating decision reflects that the claim was denied because the procedure at issue was performed by a contract provider in a non-VA facility (01/16/2014 Rating Decision), which was, and is, the prevailing standard. See 38 C.F.R. § 3.361(f)(1) 2017. After the case was certified to the Board (and after the Veteran’s Board hearing), however, the U.S. Court of Appeals for the Federal Circuit has held that such cases must also be tested for negligence on a referral theory. That is, whether VA was negligent in suggesting a procedure, and whether there was negligence in determining to whom a VA patient would be referred. See Ollis v. Shulkin, 857 F.3d 1338, 1344-46 (Fed. Cir. 2017). Hence, additional development is required so that the Agency of Original Jurisdiction (AOJ) can adjudicate the claim on that basis.
The matter is REMANDED for the following action:
1. The AOJ shall obtain all related treatment records on which the Veteran’s treating VA physician determined that the Veteran should undergo a colonoscopy, and the treating physician’s rationale for advising the Veteran to undergo a colonoscopy.
2. The AOJ shall also obtain the full Informed Consent the Veteran signed prior to the procedure, and all documents related to how the responsible VA official selected the non-VA entity where the colonoscopy was performed, and the non-VA provider who performed it. The AOJ must assess whether VA exercised the requisite due care in discharging those functions. 
3. After the above, the AOJ shall obtain a medical review of the treating physician’s determination that the Veteran should undergo a colonoscopy and opine whether such determination resulted in any additional disability.  If so, is it at least as likely as not 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, or that the proximate cause of the disability was an event not reasonably foreseeable. The AOJ shall also obtain an assessment from an appropriate VA official of whether proper procedures were followed in selecting the non-VA entity and non-VA provider for the colonoscopy.
 
Eric S. Leboff
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	W.T. Snyder