Citation Nr: 18154521 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-56 529 DATE: November 30, 2018 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for residuals of infection following transrectal prostate ultrasound and biopsy claimed to be due to treatment at the Jackson VA Medical Center (VAMC) in December 2008. REASONS FOR REMAND The Veteran served on active duty from July 1970 to July 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. 1. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of infection following transrectal prostate ultrasound and biopsy claimed to be due to treatment at the Jackson VAMC in December 2008 is remanded. The Veteran asserts entitlement to compensation under 38 U.S.C. § 1151 for residuals of an infection he developed following a transrectal prostate ultrasound and biopsy, which was performed at the Jackson VAMC in December 2008. See the VA Form 9 dated November 2016. The Veteran’s VA treatment records show that, on December 12, 2008, he underwent a transrectal ultrasound of the prostate and a biopsy was performed. On December 14, 2008, he sought emergency department treatment for chills and fever. Laboratory testing confirmed a fever and a low white blood cell count. The Veteran was admitted and treated with antibiotics. On December 15, 2008, he was noted to have had complications of leukocytosis and fever as a result of the prostate procedure. He was discharged on December 17, 2008. Subsequent VA treatment records documented no further complications. See, e.g., the VA treatment records dated in January 2009. The Veteran has not been afforded a VA opinion as to his claim. As this matter presents certain medical questions which cannot be answered by the Board, a VA medical opinion should be sought to address the outstanding questions pertaining to the pending claim. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2017) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim); Colvin v. Derwinski, 1 Vet. App. 191, 195 (1999) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). The matter is REMANDED for the following action: 1. The AOJ should refer the VA claims file to a clinician with appropriate expertise to address the Veteran’s claim of entitlement to compensation under 38 U.S.C. § 1151 for residuals of infection following transrectal prostate ultrasound and biopsy. The physician is requested to review the claims file in its entirety including all VA and private treatment records. Then, the clinician should respond to the following: (a). Is it at least as likely as likely as not (50 percent probability or greater) that the Veteran incurred an additional disability as a result of the transrectal prostate ultrasound and biopsy performed on December 12, 2008? (b). If additional disability exists, is it at least as likely as not (50 percent or greater) that the proximate cause of such additional disability was 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, please discuss if VA failed to exercise the degree of care that would be expected of a reasonable health care provider. (c). If additional disability exists, is it at least as likely as not (50 percent or greater) that such disability was due to an event not reasonably foreseeable? 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 in connection with the informed consent procedures of 38 C.F.R. § 17.32, which requires the primary health care provider to explain the reasonably foreseeable risks associated with the surgery or treatment being provided. The clinician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the clinician rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. Should the clinician decide that a physical examination of the Veteran is required to address these questions, one should be scheduled. If the clinician is unable to provide an opinion without resort to 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 clinician must provide a rationale for each opinion given. K. CONNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. K. Buckley, Counsel