Citation Nr: 21001967 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-51 568 DATE: January 12, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. Entitlement to financial assistance for the purchase of an automobile and adaptive equipment, or for adaptive equipment only is denied. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for additional disability due to September 2011 infiltration event and November 2012 surgical procedure is remanded. FINDING OF FACT The Appellant does not currently have any service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. The criteria for entitlement to financial assistance for the purchase of an automobile and adaptive equipment, or for adaptive equipment only have not been met. 38 U.S.C. §§ 3901, 3902, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.808. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Appellant had honorable active duty service in the United States Marine Corps from March 1980 through October 1980. In May 2020, the Appellant participated in a videoconference hearing before the undersigned Veterans Law Judge (VLJ), a transcript of which is of record. 1. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied; and 2. Entitlement to financial assistance for the purchase of an automobile and adaptive equipment, or for adaptive equipment only is denied. The Appellant seeks financial assistance for the purchase of an automobile and adaptive equipment, or for adaptive equipment only and seeks entitlement to a TDIU. A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Financial assistance may be provided in acquiring an automobile or other conveyance and adaptive equipment, or adaptive equipment only when a veteran has qualifying service-connected disabilities. 38 U.S.C. §§ 3901, 3902; 38 C.F.R. § 3.808. In this case, the Appellant does not currently have any disabilities that are service-connected. Because neither benefit sought is payable to a claimant without service-connected disability, these claims must be denied. REASONS FOR REMAND 1. Entitlement to compensation under 38 U.S.C. § 1151 for additional disability due to September 2011 infiltration event and November 2012 surgical procedure is remanded. The Appellant provided detailed testimony regarding a sequence of events pertaining to his medical care that he contends caused his disability. His written appeal to the Board also sets out his theories of entitlement. In his testimony, he alleged various acts or omissions by the VA constituting negligence or fault or events not reasonably foreseeable, beginning with an intravenous medication (Remicade) that was being administered on a monthly basis for Crohn’s disease. He alleges that because the intravenous medication infiltrated and pumped into his subcutaneous tissue, he did not get the full benefit of the Remicade; he contends he had to go back on Prednisone when a blockage was discovered less than a month later. He contends this caused him to be dependent on the steroid and for his skin to be in a weaker state for a subsequent surgery. The Appellant contends that during the subsequent surgery, incorrect sutures were used, and a spinal catheter was improperly administered. The Appellant contends an infection was improperly treated by the VA, and contends that this, as well as the Prednisone use, caused a hernia to develop or fail to heal properly. Review of the record seems to support Prednisone use having some complicating effects on the surgery. The evidence of record, however, does not clearly address whether Prednisone use was the result of the infiltration event, as alleged, and if the infiltration event was due to negligence, lack of care, or similar instance of fault on the part of VA. Additionally, the existing evidence of record does not fully address the Appellant’s theory of causations before, during, and after the surgery, wherein there are numerous alleged instances of fault. The informed consent documents relevant to the claimed events do not appear to be currently associated with the file and are likely outstanding and must be secured on remand. For the medical questions presented on appeal, the Board finds that specialist opinions would be of considerable assistance, and specialist medical opinions from a VA facility other than the VA Durham medical facility are so ordered. The matters are REMANDED for the following action: 1. Obtain and associate any outstanding informed consent documents related to the intravenous medications and the surgery(ies) in question with the file. 2. Obtain a medical opinion (from a VA facility other than the VA Durham medical facility) from a gastroenterologist or similarly qualified medical professional knowledgeable in the treatment of Crohn’s disease. The specialist should review the Appellant’s Section 1151 claim. The Appellant’s electronic claims file, including a copy of this remand, must be made available to the specialist for review in connection with the opinion. The specialist is to offer an opinion as to whether the Veteran’s Prednisone use at the time of his November 2012 surgical procedure(s) was, as likely as not, related to the September 2011 Remicade intravenous infiltration event. If so, provide an opinion regarding whether the infiltration event was due to (caused or aggravated by) negligence, lack of care, or similar instance of fault on the part of VA. 3. Obtain a medical opinion (from a VA facility other than the VA Durham medical facility) from a hernia specialist or a medical professional knowledgeable about hernia surgery. The specialist should review the Appellant’s Section 1151 claim. The Appellant’s electronic claims file, including a copy of this remand, must be made available to the specialist for review in connection with the opinion. The specialist should clearly identify any additional disability caused by the surgery in question and/or treatment for complications of such. The specialist is to offer an opinion as to whether it is at least as likely as not (50 percent probability) or greater) that the Appellant’s additional disability, to include hernia, is due to (caused or aggravated by) negligence, lack of care, or similar instance of fault on the part of VA, or was not reasonably foreseeable as a result of the treatment and surgery. A full and complete rationale for any stated opinion is required. 4. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the appellant, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The appellant and his representative should be afforded the applicable time period to respond. Michael A. Pappas Appellants Law Judge Board of Appellants’ Appeals Attorney for the Board T. C. KING The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.