Citation Nr: 1808750 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 13-13 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to compensation under 38 U.S.C. § 1151 for residuals of breast cancer. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran served on active duty from April 1972 to February 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In July 2017, the Veteran testified before a Decision Review Officer (DRO) at the Indianapolis, Indiana RO. A transcript of the hearing is associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks benefits under 38 U.S.C. § 1151. Such benefits are provided where there is additional disability or death caused by hospital care, medical or surgical treatment, or examination furnished to the Veteran in a VA facility, and the proximate cause of the disability or death 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. 38 U.S.C. § 1151(a) (2012); 38 C.F.R. § 3.361 (2017). The Veteran asserts that she is entitled to benefits under 38 U.S.C. § 1151(a) because the VA physician misdiagnosed her breast cancer. Specifically, the Veteran asserts that the VA physician informed her that she had a lump in her breast; however, when she was seen by a private physician it was discovered she actually had a large cancerous mass in her right breast. The Veteran further alleges that the delay in diagnosing her breast cancer caused her to have a radical mastectomy. See VA Form 21-4138 received December 2009. In May 2012, the RO requested that the Veteran be provided a VA examination related to her 1151 claim. The RO requested that the VA examiner review the treatment notes and informed consents and discuss whether in the course of treatment, the treating facility failed to timely diagnose or properly treat the Veteran's disability thereby causing an increased disability. The RO further requested that the VA examiner discuss whether the Veteran's current residuals are merely coincident with the treatment, a known risk as shared with the Veteran during informed consent procedures or would any additional disability be considered a necessary consequence of treatment or the natural progression of the disease. See, VA Form 21-2507a, Request for Physical Examination dated May 2012. The Veteran was provided a VA examination in July 2012. The VA examiner reviewed the record and stated that the Veteran's history and treatment is complex and that it would be better off if an opinion was provided by a specialist in this area, such as an oncologist. As such, the July 2012 VA examiner did not address any of the issues directed by the RO. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, the July 2012 VA examination and opinion do not address the factors necessary to decide the claim. Accordingly, it is inadequate for decision-making purposes, and the case must be remanded so that an adequate VA addendum opinion may be obtained. Accordingly, the case is REMANDED for the following action: 1. Forward the record and a copy of this remand to a suitably qualified VA examiner, other than the VA examiner who conducted the July 2012 VA examination, to determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran experienced additional disability that was proximately caused by an event not reasonably foreseeable. Whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not 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. 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). Accordingly, in providing the requested opinion, the examiner is asked to consider whether, given the treatment provided to the Veteran, a large cancerous mass in her right breast such as that experienced by the Veteran would have been foreseen by a reasonable health care provider. All opinions provided must be supported by a medical rationale. 2. After completion of the above, review the expanded record, including the evidence entered since the most recent supplemental statement of the case, and determine whether the benefit sought may be granted. If the benefit sought remains denied, furnish the Veteran and her representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 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. §§ 5109B, 7112 (2012). _________________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).