Citation Nr: 18155260
Decision Date: 12/04/18	Archive Date: 12/03/18

DOCKET NO. 16-24 266
DATE:	December 4, 2018
REMANDED
Entitlement to compensation pursuant to 38 U.S.C. § 1151 for diabetes mellitus is remanded.
Entitlement to compensation pursuant to 38 U.S.C. § 1151 for osteomyelitis, to include as secondary to diabetes mellitus, is remanded.
REASONS FOR REMAND
The Veteran served on active duty from April 1980 to October 1981.
As an initial matter, the Board notes that in the March 2015 statement of the case (SOC), the Regional Office (RO) adjudicated the Veteran’s claims as requiring the submission of new and material evidence.  Although the Veteran was previously denied disability benefits for diabetes mellitus and osteomyelitis in a final March 2012 rating decision, those claims were adjudicated as service connection claims (i.e., addressing the question of whether the Veteran’s claimed disabilities were related to her military service).  The Veteran’s current claims, however, are being claimed under 38 U.S.C. § 1151.  Therefore, new and material evidence is not required and the issues have been characterized as above.

Entitlement to compensation pursuant to 38 U.S.C. § 1151 for diabetes and for osteomyelitis is remanded.
The Veteran submits that her diabetes is due to carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault on the part of VA during a December 1982 cholecystectomy.  Specifically, the Veteran submits that the VA erred with respect to the drainage site which caused infections, which, in turn, caused Type I diabetes.  The Board notes that it is unclear from the record whether the Veteran has a diagnosis of Type I diabetes or Type II diabetes. 
VA provided a report for an 1151 claim in March 2014.  The reviewer did not address whether the Veteran’s diabetes is due to carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault on the part of VA during a December 1982 cholecystectomy.  Further, the reviewer found that the Veteran’s osteomyelitis may be proximately caused by her diabetes. 
Where, as here, VA undertakes to provide an examination or obtain an opinion when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Bolton v. Brown, 8 Vet. App. 185 (1995).  As the opinion did not address the 1151 argument detailed above, the Board finds that another opinion is necessary.
The matters are REMANDED for the following action:
Schedule the Veteran for a VA examination by an appropriate medical professional to prepare an opinion regarding her claim for compensation pursuant to 38 U.S.C. § 1151 for diabetes mellitus claimed as a result of a December 1982 cholecystectomy.  Following a review of the claims file and medical history, the VA examiner should offer an opinion as to the following:
a. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran has diabetes mellitus as a result of the December 1982 cholecystectomy.
b. If yes, whether it is at least as likely as not (i.e., a 50 percent or greater probability) due to carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA; OR whether it is at least as likely as not (i.e., a 50 percent or greater probability) an event not reasonably foreseeable from the surgical treatment based upon the specific facts and circumstances of this Veteran’s case.
c. If the answers above are all yes, whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s osteomyelitis is due to her diabetes mellitus.
The examiner must provide a rationale for all opinions provided.  If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.





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A. ISHIZAWAR
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N. Shah, Associate Counsel