Citation Nr: 1815696 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 14-38 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to compensation benefits under 38 U.S.C. § 1151 for residuals of typanoplasty and post-operative care received at a VA medical facility in September 2000. REPRESENTATION The Veteran is represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran INTRODUCTION The Veteran served on active duty from May 1964 to April 1967. 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) in Houston, Texas. In June 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. This appeal is remanded to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran is further action is required. REMAND The Veteran was not provided a VA examination with respect to the above-captioned claim. The Board finds that the evidence of record is insufficient to adjudicate this claim on the merits and, thus, a remand is warranted in order to provide the Veteran an examination. Accordingly, the case is remanded for the following actions: 1. The AOJ must schedule the Veteran for a VA examination to determine whether the Veteran has an additional disability resulting from the VA medical care administered in September 2000. The examiner must review the claims file and note that review in the report. Any indicated studies should be performed. Based on the examination of the Veteran and a review of the record, the examiner should provide opinions with respect to the following questions: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran has additional disability as a result of the September 2000 typanoplasty and/or post-operative care? b) If there is additional disability, is it at least as likely as not (50 percent or greater probability) that the additional disability is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the treatment and/or that VA failed to exercise the degree of care that would be expected of a reasonable health care provider? c) If there is additional disability, is it at least as likely as not (50 percent or greater probability) that the additional disability is the result of an event not reasonably foreseeable? In responding to these questions, the examiner must specifically consider and discuss the Veteran's assertions, with a particular emphasis on VA's response (or lack thereof) to his report of post-operative bleeding (i.e., not telling the Veteran to return immediately for additional treatment and, instead, being instructed to call back in 5 hours if additional bleeding occurred as documented in a treatment report). The rationale for all opinions expressed must be provided. 2. The Veteran must be notified that it is his responsibility to report for the scheduled examination and to cooperate in the development of his claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 3. The AOJ must then re-adjudicate the issue. If the benefit sought on appeal is denied, a supplemental statement of the case must be issued to the Veteran and his representative. After they have had an appropriate time for response, the appeal should be remitted to the Board for further appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the AOJ. 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 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 (West 2014). _________________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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).