Citation Nr: 18150236 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 15-04 239 DATE: November 14, 2018 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for a liver disability due to VA treatment is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1974 to October 1976. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in a January 2015 substantive appeal, the Veteran requested a hearing before the Board. In July 2015, the Veteran withdrew his request for a hearing. Therefore, the Board may proceed to adjudicate the appeal. Entitlement to compensation under 38 U.S.C. § 1151 for a liver disability due to VA treatment The claim must be remanded to obtain a VA examination addressing whether the Veteran has an additional disability of the liver due to VA medical treatment, specifically medication prescribed by VA. In a November 2012 claim, the Veteran asserted that he had liver damage associated with medication prescribed by the VA Hospital in Oklahoma City, Oklahoma. Under 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability in the same manner as if such additional disability were service-connected. For purposes of this section, a disability is a qualifying additional disability if (1) the disability was not the result of the veteran’s willful misconduct, (2) the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under the law administered by the Secretary, and (3) the proximate cause of the disability 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; 38 C.F.R. § 3.361. It is unclear from the evidence of record whether the Veteran has a liver condition. An October 2012 VA treatment record indicates that the Veteran’s liver was “slightly increased in size due the deposition of fat. Nothing alarming, is secondary to [diabetes mellitus], obesity, etc.” A January 2013 VA treatment record reflects that the Veteran admitted non-compliance with medications/insulin stating “these meds hurt his liver” so he quit taking them. An October 2014 VA treatment record reflects that the Veteran reported that he took the newest medication he was given, he believed it was Levothyroxine, for three days. He stated it was hurting his liver and he had stopped taking it. A January 2015 VA treatment record reflects that the Veteran reported onset of problems following treatment with an antibiotic that per him injured his liver. The Veteran had diagnoses of hypogonadotrophic hypogonadism, with contributing factors of uncontrolled diabetes, obesity and tramadol. As the Veteran’s VA treatment records indicate he may have a liver disability secondary to diabetes mellitus, and the Veteran asserted that the medication prescribed for diabetes hurt his liver, the claim must be remanded for a VA examination. Further, evidence indicates that there may be outstanding relevant VA treatment records. The Veteran’s VA treatment records from June 2010 to October 2012 are not in the claims file. The Veteran’s claim indicates he believes the liver increased in size, which was noted in October 2012, due to medications prescribed prior to that date. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain them. The matter is REMANDED for the following action: 1. Obtain the Veteran’s complete VA treatment records for the period from June 2010 to October 2012 and from October 2018 to the Present. 2. After obtaining any additional records, schedule the Veteran for an examination by an appropriate clinician to address whether the Veteran has an additional liver disability that was caused by medication prescribed by VA, including medication for diabetes mellitus in 2012. The clinician should specifically address the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran has an “additional disability” of the liver caused by medication prescribed by the VA in 2012? The term “additional disability” means any condition that did not exist immediately before the Veteran’s VA treatment. The clinician must compare the Veteran’s condition, including the degree of disability, immediately before and after the VA treatment. If there is no “additional disability,” then the clinician does not need to provide answers to (b) and (c) but must explain why the liver disability that the Veteran contends constitutes an “additional disability” is not an additional disability associated with VA treatment. (b) If the Veteran has a liver disability caused by the VA treatment, then is it at least as likely as not that the proximate cause of such disability or disabilities is carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA? 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 in furnishing treatment, discuss whether VA failed to exercise the degree of care that is expected of a reasonable health care provider. (c) If the Veteran has a liver disability caused by VA treatment, then is it at least as likely as not that this additional disability was reasonably foreseeable as an ordinary risk of the treatment that would be disclosed in connection with informed consent (primary health care provider explains the reasonably foreseeable risks associated with VA treatment or services furnished the Veteran)? The examiner must provide a complete rationale for any opinion expressed. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Marenna, Counsel