Citation Nr: 1806974 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-02 063 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to compensation pursuant to 38 U.S.C. § 1151 (2012) for a cardiac disorder following VA treatment in August and September 2009. 2. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Bassett, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1971 to July 1973. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2013 and August 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In January 2016, the Board remanded the case to the RO for further development and adjudicative action. The Veteran applied for TDIU in April 2016. The RO denied the Veteran's claim in August 2016, the Veteran disagreed in September 2016, the RO issued a statement of the case (SOC) in March 2017, and the Veteran submitted a substantive appeal in March 2017. While the issue has not been certified to the Board, it is inextricably intertwined with the Veteran's § 1151 claim and therefore the Board will assume jurisdiction over this claim. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim.) aff'd, 631 F.3d 1380 (Fed. Cir. 2011), vacated on other grounds, 132 S. Ct. 75 (2011). As the Board is remanding this claim for further development and adjudication, there is no prejudice to the Veteran by assuming jurisdiction. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993) (noting that "the Board's action on appeal in proceeding to decide a question that the AOJ had not decided raises the possibility that a claimant will be prejudiced by not having been afforded the full benefits of the[] procedural safeguards"). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Board remanded the Veteran's claim in January 2016 to obtain additional records, a new VA examination, and to obtain records from Dr. Moro. The VA examiner was requested to provide an opinion that included an answer to the question of whether the additional disability caused by the Veteran's cardiac catheterization, stent placement, or subacute stent thrombosis was an event not reasonably foreseeable. Instead, the April 2016 VA examiner responded, "DOES NOT APPLIED. SEE ABOVE (i)." However, the VA examiner provided no explanation as to why the question does not apply. Compensation under the provisions of 38 U.S.C. § 1151 shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service connected. A disability is a qualifying additional disability if (1) the disability was not the result of the veteran's willful misconduct; (2) was caused by hospital care, medical or surgical treatment, or examination furnished to the veteran under any law administered by VA either by a VA employee or in a VA facility; and (3) the proximate cause of the disability was 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 an event not reasonably foreseeable. As such, compensation could be warranted if an event was not reasonably foreseeable even if there was no carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. The VA examiner's response is inadequate, so remand is necessary to ensure compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand). As for the TDIU issue, the question of whether the Veteran's service-connected disabilities prevent the Veteran from obtaining or maintaining gainful employment hinges on the Veteran's service-connected disabilities. The adjudication of the Veteran's § 1151 claim could result in additional service-connected disabilities. As such, the claims are inextricably intertwined and the TDIU claim must additionally be remanded. See Tyrues, 23 Vet. App. at 177. Further, the RO does not seem to have considered whether a referral to the Director of Compensation Service (Director) under 38 C.F.R. § 4.16(b) is warranted. Since the claims file is being returned it should be updated to include any recent VA treatment records that are not of record. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers, to obtain the treatment records identified by the Veteran. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Thereafter, have the July 2013 and April 2016 VA examiner review the claims file and prepare an addendum to the July 2013 and April 2016 examination reports. The claims file must be made available to the examiner in conjunction with the preparation of the addendum. The addendum to the examination report must indicate that the claims file was reviewed in conjunction with the preparation of the addendum. If the July 2013 and April 2016 VA examiner is unavailable, the AOJ should arrange to have claims folder to be reviewed by another appropriate medical professional. If the July 2013 and April 2016 VA examiner or the new medical professional thinks another examination is necessary, the Veteran should be scheduled for one. The examiner should provide a written response to the following inquiries: (a) August 10, 2009, cardiac catheterization (i.) Whether it is at least as likely as not (50 percent or greater) that the Veteran has any additional disability caused by the August 10, 2009, VA cardiac catheterization. (ii.) If the examiner finds that it is at least as likely as not that any additional disability was caused by the August 10, 2009, VA cardiac catheterization, whether it is at least as likely as not (50 percent or greater): (i) that there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in providing the August 10, 2009, VA cardiac catheterization; or (ii) that the current additional cardiac disability caused by the August 10, 2009, VA cardiac catheterization was an event not reasonably foreseeable. (b) August 26, 2009, stent placement (i.) Whether it is at least as likely as not (50 percent or greater) that the Veteran has any additional disability caused by the August 26, 2009, to August 27, 2009, hospitalization for a stent placement during which clopidogrel (Plavix) was prescribed. (ii.) If the examiner finds that it is at least as likely as not that any additional disability was caused by the August 26, 2009, to August 27, 2009, hospitalization for a stent placement, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater): (i) that there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in providing treatment during the August 26, 2009, to August 27, 2009, hospitalization for a stent placement during which clopidogrel (Plavix) was prescribed; or (ii) that the current additional cardiac disability caused by treatment during the August 26, 2009, to August 27, 2009, hospitalization for a stent placement during which clopidogrel (Plavix) was prescribed was an event not reasonably foreseeable. (c) August 29, 2009, subacute stent thrombosis (i.) Whether it is at least as likely as not (50 percent or greater) that the Veteran has any additional disability caused by the August 29, 2009, to September 3, 2009, hospitalization for treatment of a subacute stent thrombosis. (ii.) If the examiner finds that it is at least as likely as not that any additional disability was caused by the August 29, 2009, to September 3, 2009, hospitalization for treatment of a subacute stent thrombosis, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater): (i) that there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in providing treatment during the August 29, 2009, to September 3, 2009, hospitalization for treatment of a subacute stent thrombosis; or (ii) that the current additional cardiac disability caused by treatment during the August 29, 2009, to September 3, 2009, hospitalization for treatment of a subacute stent thrombosis was an event not reasonably foreseeable. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. Thereafter, the AOJ must readjudicate the issue on appeal. If the benefit is not granted, the Veteran should be furnished with a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).