Citation Nr: 18154957 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 15-25 569 DATE: December 3, 2018 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for deformation of the penis with erectile dysfunction. REASONS FOR REMAND The Veteran served on active duty from April 1969 to April 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to compensation under 38 U.S.C. § 1151 for deformation of the penis with erectile dysfunction. The Veteran requested a hearing before a Veterans Law Judge (VLJ). A hearing was scheduled in October 2018 but the Veteran did not appear at the hearing. 1. Entitlement to compensation under 38 U.S.C. § 1151 for deformation of the penis with erectile dysfunction is remanded. The Veteran claims to have Peyronie’s disease with erectile dysfunction as the result of a medical procedure he had at VA hospital. Pursuant to 38 U.S.C.§ 1151, compensation shall be awarded for a qualifying additional disability in the same manner as if such additional disability was service connected. A disability is a qualifying additional disability under § 1151 if it was not the result of the Veteran’s willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the VA, and 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 VA in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151 (a). To determine whether additional disability exists within the meaning of 38 U.S.C. § 1151, the Veteran’s condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based is compared to his condition after such care, treatment, examination, services, or program has been completed. Each body part or system involved is considered separately. 38 C.F.R. § 3.361 (b). To establish causation, evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran’s additional disability. Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361 (c)(1). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361 (d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran’s additional disability, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran’s additional disability and (i) that VA failed to exercise the degree of care that would be expected of a reasonable health care provider or (ii) that VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran’s or, in appropriate cases, the Veteran’s representative’s informed consent. 38 C.F.R. § 3.361 (d)(1). Finally, the determination of whether the proximate cause of a Veteran’s additional disability was an event not reasonably foreseeable is to be based on what a reasonable health care provider would have foreseen. The event does not have to be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. 38 C.F.R. § 3.361 (d)(2). The regulation further provides that, in determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). Here, the Board does not have sufficient medical evidence upon which to adjudicate this claim. The medical evidence of record indicates that the Veteran underwent a right femoral catheterization in January 2010, and that the Veteran has been treated for erectile dysfunction and has had a history of Peyronie’s disease. In January 2013, the Veteran underwent a VA examination. The January 2013 VA examiner observed no deformity of the penis, testes, epididymis, or prostate, including Peyronie’s disease. The VA examiner diagnosed the Veteran with erectile dysfunction and opined that the erectile dysfunction could result from blood vessel or nerve injury, which were known risks of the January 2010 procedure, but also noted that the Veteran had sought treatment for erectile dysfunction in 2005 prior to undergoing the January 2010 procedure. Additional medical records from February 2014 indicate that the Veteran has a history of Peyronie’s disease. Medical records also indicate that the Veteran may have obtained a second medical opinion related to his Peyronie’s disease, but there are no records of the Veteran obtaining a second opinion associated with the claims file. As there may be outstanding medical records, and as the VA examiner did not address the Veteran’s claims that his Peyronie’s disease was the result of his January 2010 procedure and follow up care, a remand is necessary to adjudicate the Veteran’s claim. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any physician or facility from whom he sought treatment for his Peyronie’s disease with erectile dysfunction. Make two requests for the authorized records from any physician or facility identified by the Veteran unless it is clear after the first request that a second request would be futile. 2. Forward the claims file to an appropriate medical expert for an etiological opinion regarding the Veteran’s reported Peyronie’s disease with erectile dysfunction. If the medical expert thinks a VA examination is necessary, the Veteran should be scheduled for one. The reviewer should address the following: (a) Whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran has any additional disability of the genitals, to include but not limited to Peyronie’s disease and erectile dysfunction, after the January 2010 right femoral artery catheterization or any VA medical care he received related to that procedure. The examiner should discuss the Veteran’s statement that the Peyronie’s disease was the result of his January 2010 procedure and follow up care (b) If the medical professional finds that it is at least as likely as not that there is an additional disability involving the genitals as a result of the Veteran’s January 2010 right femoral artery catheterization or any VA medical care he received related to that procedure, whether it is at least as likely as not (i.e. 50 percent or greater): (i) that the additional disability was a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA personnel in providing care related to the Veteran’s January 2010 right femoral artery catheterization, and; (ii) that the additional disability was an event not reasonably foreseeable. The medical professional should indicate in his/her report that the claims file was reviewed. A rationale for all opinions expressed should be provided. A report should be prepared and associated with the Veteran’s VA claims folder. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Boal, Associate Counsel