Citation Nr: 21041522 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-13 313 DATE: July 9, 2021 REMANDED Compensation pursuant to 38 U.S.C. § 1151 for an additional disability due to VA's alleged failure to diagnose and/or treat hydrocephalus is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1984 to January 1988 in the United States Army. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office. In April 2021, the Veteran testified before the undersigned during a virtual hearing. A transcript of the hearing is included in the electronic claims file. Compensation pursuant to 38 U.S.C. § 1151 for an additional disability due to VA's failure to diagnose and/or treat hydrocephalus is remanded. A veteran disabled as a result of VA medical treatment may receive compensation for a qualifying additional disability in the same manner as if such additional disability were service-connected. 38 U.S.C. § 1151. An additional disability is a qualifying disability if: (1) it was not the result of the veteran's willful misconduct; (2) the disability was caused by VA hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the VA; and, (3) the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination, the proximate cause of the disability was an event not reasonably foreseeable, or VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's informed consent. Id. Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361 (c)(2). Entitlement to § 1151 benefits based on the failure to diagnose or treat a preexisting condition requires a determination that: (1) VA failed to diagnose or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the Veteran suffered a disability that probably would have been avoided if the proper diagnosis and treatment had been rendered. See VAOPGCPREC 5-2001 (Feb. 5, 2001). See also Roberson v. Shinseki, 22 Vet. App. 358, 363 (2009) aff'd Roberson v. Shinseki, 607 F.3d 809 (2010). At the April 2021 hearing, the Veteran testified that in as early as 2004, he experienced problems with headaches and his memory. He sought treatment at the Hunter Holmes McGuire VA Medical Center in Richmond, Virginia, where a magnetic resonance imaging (MRI) study was conducted. The Veteran was told that no abnormalities were found, but his problems persisted. In 2010 he was involved in a motor vehicle accident and a second MRI was performed at the McGuire VA Medical Center. He was again told that no abnormalities were found. As his symptoms were worsening, he eventually sought treatment from a private neurologist, who performed a spinal tap procedure which relieved pressure and quickly relieved his symptoms. He was told that the improvement of his symptoms through the spinal tap procedure indicated the presence of hydrocephalus, the buildup of fluid in the cavities (ventricles) of the brain. In 2011, he underwent brain surgery and an adjustable shunt was placed to release the buildup of fluid. The Veteran has testified that the procedure has been successful in treating his symptoms. He testified that his hydrocephalus was present at the time VA performed the MRI scans in both 2004 and 2010, and indicated that VA was negligent in failing to timely diagnose and treat the condition. The Board finds that further development of the claim is needed prior to appellate adjudication. Initially, both the actual MRI images and the accompanying reports from 2004, 2010, and 2011 should be obtained and associated with the file. While the Board can point to summaries and references to these MRI studies, the actual images are not of record. Similarly, the actual images with accompanying reports from any outstanding computerized tomography (CT) scans or other pertinent testing of the brain should also be obtained. After the above records have been obtained, a VA medical opinion from a neuroradiologist, or other medical specialist if suggested by the neuroradiologist, should be obtained. In rendering the opinions requested, the examiner must consider the Veteran's actual brain images and the accompanying reports. While a VA examination medical opinion addressing the 38 U.S.C. § 1151 claim was obtained in May 2014 from a nurse practitioner, given the medical complexity of this particular case, the Board finds that the opinion of a specialist is needed. The matter is REMANDED for the following action: 1. Obtain and associate with the record the (a.) actual brain images and (b.) accompanying reports generated from MRI studies of the Veteran's brain conducted at the Hunter Holmes McGuire VA Medical Center in Richmond, Virginia in 2004 and 2010. 2. Ask the Veteran to complete VA Form 21-4142 for the 2011 MRI study conducted at the Medical College of Virginia. Thereafter, make two requests for the authorized records from this facility unless it is clear after the first request that a second request would be futile. Document all requests made and all responses received for the claims file. Additionally, invite the Veteran to identify any other outstanding evidence, either VA or private, pertaining to the 38 U.S.C. § 1151 claim on appeal. The VA Regional Office/Appeals Management Center must thereafter request and obtain any outstanding VA treatment records, as well as any private records upon his completion of a VA Form 21-4142. 3. After the above development is complete, obtain a medical opinion from a neuroradiologist addressing the Veteran's hydrocephalus. If the neuroradiologist indicates that the determinations sought require the opinion of a different type of specialist, the remand must be sent to that type of specialist. Unless determined otherwise by the examiner, an actual examination of the Veteran is not required. (A.) Please review the actual brain images and accompanying reports from the following sources: (i.) 2004 and 2010 MRI studies conducted by the Richmond VA Medical Center, (ii.) 2011 MRI study conducted by the Medical College of Virginia, and (iii.) any other pertinent MRI or CT studies. (B.) Was there a failure to diagnose or treat his hydrocephalus in 2004 or 2010 when MRI studies were conducted? Why do you say so? If so, did the Veteran sustain any additional disability as a result of such failure to diagnose or treat? In this regard, the examiner is advised that hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c). (C.) If yes as to (A), was the proximate cause of the additional disability carelessness, negligence, a lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical treatment? Why do you say so? (D.) If yes to (A), was the development of the additional disability an event that was not reasonably foreseeable? Why do you say so? M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.