Citation Nr: 21075817 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 15-17 399 DATE: December 21, 2021 ORDER The request to reopen the claim of entitlement to compensation pursuant to 38 U.S.C. § 1151 for colon perforation is granted. REMANDED Entitlement to compensation pursuant to 38 U.S.C. § 1151 for colon perforation is remanded. Entitlement to service connection for diabetes is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to a compensable evaluation prior to January 8, 2021 and in excess of 30 percent thereafter for a bilateral hearing loss disability is remanded. FINDINGS OF FACT 1. In a May 2011 rating decision, the Veteran was denied compensation under 38 U.S.C. § 1151 for colon perforation on the basis that his disability was a known complication of a colonoscopy and the evidence did not show lack of care on the part of VA. The Veteran was notified of that decision in correspondence issued the same month. He did not appeal the decision, nor was material evidence received within one year. Therefore, the decision is final. 2. During an April 2018 Board hearing, the Veteran testified that he was never told about the risk of perforation before his colonoscopy. This evidence is relevant and probative, and it helps cure a prior evidentiary defect; namely, carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment. CONCLUSIONS OF LAW 1. The May 2011 rating decision, which denied compensation under 38 U.S.C. § 1151 for colon perforation, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 19.52 (2021). 2. The evidence received since the May 2011 rating decision, which denied compensation under 38 U.S.C. § 1151 for colon perforation, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2021). REASONS FOR REMAND The Veteran served on active duty from January 1971 to December 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision by the Department of Veterans Affairs (VA). This case was remanded in December 2018 for further development. In April 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record but contains significant portions of inaudible testimony. As discussed in the Board's prior remand, the Veteran did not respond to an opportunity to have a new hearing. Thus, the Board may proceed with adjudication. Since the Board's remand, the issue of entitlement to an acquired psychological disorder was granted in a July 2021 rating decision. Because that decision represents a full grant of the benefit sought, the issue is no longer on appeal. Due to the Board's grant of service connection for a left ear hearing loss disability, the Agency of Original Jurisdiction (AOJ) recharacterized the Veteran's service-connected right ear hearing loss disability to encompass both ears, effective November 14, 2013. See December 2018 rating decision. The issue has been characterized accordingly. For the reasons discussed above, the request to reopen the claim of entitlement to compensation under 38 U.S.C. § 1151 for colon perforation has been granted. The issue will not be further discussed herein. 1. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for colon perforation. The Veteran underwent a colonoscopy at a VA Medical Center (VAMC) in August 2010. Treatment records reflect that he signed an informed consent form, but that form is not of record; the full consent document can be accessed through "Vista Imaging." The treatment records reflect that the benefits, risks, and alternatives for the procedure were discussed and a verbal time out was performed. During the colonoscopy, his colon was perforated, and he was sent to emergency surgery. During his April 2018 Board hearing, the Veteran testified that he had difficulty passing his bowels and would sometimes faint after standing up. He stated that, while he signed a form for informed consent, he was not explicitly told that perforation was a risk associated with the colonoscopy. Prior to the current appeal, a VA medical opinion was obtained wherein the examiner opined that the Veteran did not have a colon or other digestive condition due to his colonoscopy that was the result of a lack of due care or negligence on the part of VA. The examiner stated that perforation is a well-known complication of colonoscopy and there was nothing in the treatment records that would make the examiner believe that anything but the standard of care was employed throughout the colonoscopy. The examiner stated that colon perforation is a standard risk of colonoscopy that is addressed during the procedure consent process. See February 2011 VA medical opinion. The Board notes that, while the May 2011 rating decision stated that August 2010 VA treatment records were of record at that time, the claim file itself does not reflect that such records were associated with the file. Thus, it is unclear what evidence the February 2011 VA examiner was reviewing. In light of the Veteran's assertion that he did not provide informed consent for his colonoscopy, remand is necessary to obtain the consent form from "Vista Imaging." Additionally, remand for a new opinion is necessary to ensure that an opinion is provided with review of all relevant records. 2. Entitlement to service connection for diabetes. The threshold question for this matter is whether the Veteran was exposed to herbicide agents during service. He asserted that he was exposed to unknown chemicals while doing military exercises in Japan. See April 2018 Board hearing. Military personnel records reflect that the Veteran was in Japan starting in December 1971 and went aboard several ships for a few days at a time, to include the USS Denver, USS Juneau, and USS Cayuga, in between ports in Japan. The Board remanded this matter to determine whether the Veteran was exposed to herbicide agents in Japan. Even if the Veteran were near the Korean DMZ, his military records reflect he was in Japan after the qualifying time period for a presumption of exposure to herbicide agents, which ended in August 1971. See 38 C.F.R. § 3.307(a)(6)(iv). Thus, exposure must be demonstrated on a direct basis. The AOJ obtained an opinion from the Joint Services Records Research Center (JSRRC); however, the JSRRC merely detailed the 1972 command history for the USS Juneau. See March 2020 JSRRC correspondence. The Veteran was aboard that vessel for approximately three days, from April 27, 1972 to April 30, 1972, see military personnel records, and the JSRRC opinion does not discuss whether the Veteran was exposed to herbicide agents during any military performances. Thus, the opinion is inadequate and remand for more development is necessary. 3. Entitlement to service connection for a lumbar spine disability. The Veteran reported experiencing lower back pain in service but did not seek medical attention. A December 2020 VA examiner diagnosed lumbosacral strain and opined it was less likely than not that the disability was related to service. The examiner discussed that there was insufficient chronicity and continuity of care during service and that relating the lumbar strain to service would be mere speculation. The opinion is inadequate because it relied on the absence of evidence in service treatment records (STRs) and did not discuss what other evidence would be necessary so that an opinion could be rendered. Thus, remand for a new examination is necessary. 4. Entitlement to service connection for a bilateral knee disability. April 2016 VA treatment records reflect a diagnosis of bilateral knee arthritis. During a December 2020 VA examination, the examiner merely diagnosed left knee strain and right knee instability without diagnostic testing or imaging to determine whether the Veteran had arthritis. During that examination, the Veteran reported knee pain starting in 2010. However, VA treatment records reflect reports of knee pain prior to 2010. See April 2007 and May 2007 VA treatment records. The December 2020 VA examiner opined that it was less likely than not that the Veteran's knee disabilities were related to service. The examiner discussed that there was insufficient chronicity and continuity of care during service and that relating the knee disabilities to service would be mere speculation. The opinions are inadequate because they relied on the absence of evidence in STRs and did not discuss what other evidence would be necessary so that an opinion could be rendered. Because it appears that the Veteran may have bilateral knee arthritis and there are no adequate opinions of record, remand for a new examination is necessary. 5. Entitlement to a compensable evaluation prior to January 8, 2021 and in excess of 30 percent thereafter for a bilateral hearing loss disability. The record reflects that the Veteran is receiving Social Security Administration (SSA) disability benefits in connection with at least one issue on appeal. See October 2012 VA treatment records. Because the Veteran's SSA records may reasonably contain information relating to the Veteran's issues on appeal, remand of all issues is required to obtain his SSA records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from July 2021 to the present. 2. The AOJ must obtain a copy of the August 2010 informed consent form for the colonoscopy that is in "Vista Imaging." Simply obtaining VA treatment records will not be sufficient. If the copy of the informed consent form from Vista Imaging cannot be obtained, the AOJ must detail its attempts to obtain the copy and state why it could not be obtained. 3. The AOJ should request directly from the SSA relevant records, including determinations and medical records, regarding any claim for disability benefits. All attempts to fulfill this development should be documented in the claim file. If the records are unavailable, it should so be noted on the record and the reason for unavailability should be provided. 4. The AOJ should refer the case to the JSRRC, or other appropriate entity, for research and verification of the Veteran's possible exposure to herbicide agents while serving in Okinawa and Numazu Beach, Japan from approximately December 1971 to sometime in 1972. The development should include whether herbicide agents were used in any training exercises the Veteran underwent while in Japan. The AOJ must submit multiple 60-day search requests if necessary. All attempts to verify such exposure and responses received should be documented in the claim file. 5. After the development in the first three directives is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and cause of any additional disability after the Veteran's August 2010 colonoscopy. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: 6. Please identifywithout regards to negligence, carelessness, etc. on the part of VAany additional disability that is a result of the Veteran's August 2010 colonoscopy. The examiner should discuss bowel movements and fainting, as appropriate. To determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care, or medical or surgical treatment upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each involved body part or system separately. 7. For each additional disability identified, is it at least as likely as not (50% or greater probability) that the proximate cause of the disability was an event not reasonably foreseeable? Please explain why. Whether the proximate cause of a veteran's additional disability or death 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 8. For each additional disability identified, is it at least as likely as not (50% or greater probability) that VA failed to exercise the degree of care that would be expected of a reasonable health care provider? Please explain why. 9. For each additional disability identified, is it at least as likely as not (50% or greater probability) that VA furnished care, treatment, or examination for the colonoscopy without the Veteran's informed consent? Please explain why. 10. After the development in the first three directives is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any lumbar spine disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: For each lumbar spine disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's military service? Please explain why. The examiner may not rely solely on the absence of evidence in STRs or medical records immediately after service. If the examiner cannot opine without resorting to mere speculation, they must provide a complete explanation for why an opinion cannot be rendered. 11. After the development in the first three directives is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any bilateral knee disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: 12. Please identify, by diagnosis, all knee disabilities present during the appeal period (from November 2013). The examiner must opine on whether the Veteran has bilateral knee arthritis. 13. For each knee disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's military service? Please explain why. The examiner may not rely solely on the absence of evidence in STRs or medical records immediately after service. If the examiner cannot opine without resorting to mere speculation, they must provide a complete explanation for why an opinion cannot be rendered. 14. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, Counsel 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.