Citation Nr: 22017004 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 18-46 898 DATE: March 23, 2022 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for right ear hearing loss due to a November 29, 2007, colonoscopy performed at a VA Medical Center (MC) is remanded. REASONS FOR REMAND The Veteran had active service from September 1955 to February 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2020, the Veteran presented testimony at a virtual hearing before the undersigned Veterans Law Judge (VLJ). The hearing transcript is associated with the claims file. This matter was previously before the Board in January 2021, when the Board denied the claim. The Veteran appealed the Board's denial of the claim to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in November 2021, the Court granted an October 2021 Joint Motion for Remand (JMR) of the parties (the Secretary of VA and the appellant), and vacated the Board's decision, and remanded the case to the Board for readjudication consistent with the JMR. It now returns for appellate review. VA correspondence dated November 15, 2021 has been issued to the Veteran and his representative, informing the Veteran that he may submit any additional argument or evidence within 90 days of the date of the letter or waive the 90 day period if he would like the Board to proceed to immediate adjudication of the appeal for the issue vacated by the Court. In a response received by VA on January 31, 2021, the Veteran responded that he did not have additional evidence or argument to submit and waived any remaining time to submit additional evidence or argument. Further, the 90 day period has elapsed, and remand is required pursuant to the October 2021 JMR. 1. Entitlement to compensation under 38 U.S.C. § 1151 for right ear hearing loss due to a November 29, 2007, colonoscopy performed at a VAMC is remanded. Specifically, the October 2021 JMR found remand was warranted regarding the duty to notify in relation to potentially outstanding private treatment records. Specifically, the JMR found during the October 2020 hearing, the Veteran was not advised that any private medical records for an emergency room visit, potentially on December 13, 2007, were relevant to his claim and that he should submit them. The October 2021 JMR also noted, as any outstanding private medical records, such as December 2007 emergency room records, the Board decision cited to a September 2016 letter which provided the Veteran a VA Form 21-4142; however, the JMR found this letter mentioned a VA Form 21-4142 in the body of the letter, but did not list the actual form as an attachment. However, regardless, as to whether VA specifically provided the Veteran with a VA Form 21-4142 or not, or whether the Veteran was provided sufficient notice to submit relevant records during the Board hearing, the Veteran submitted the claim at issue in an August 2016 VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits. The attached instructions, to the VA Form 21-526EZ, titled, Notice to Veteran/Service Member of Evidence Necessary to Substantiate a Claim for Veterans Disability Compensation and Related Compensation Benefits, specifically state in part, that that "You must: Submit all relevant private treatment records, if they exist" and "You must: Complete and sign VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA) and VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs (VA), identifying any private medical records you wish VA to request for you" which clearly and unambiguously satisfied the duty to notify as to any private medical records. The October 2021 JMR also found the Veteran's VA records showed that non-VA records were scanned into the Veteran's VA treatment records, but had not been associated with his claim file. Specifically, the JMR cited to VA records indicating that private medical records were scanned on February 14, 2008, March 14, 2008, February 2009, March 2009, October 2009, January 2010, January 12, 2011, January 28, 2011, September 2014, April 2016, September 2016, and April 2017. Finally, the October 2021 JMR found the Board failed to provide adequate reasons or bases as to whether a VA medical examination was necessary in this case. The JMR found the Board erred by failing to address whether a VA medical opinion was necessary to determine whether a specific type of anesthesia administered during the Veteran's colonoscopy resulted in right ear hearing loss. This matter is REMANDED for the following actions: 1. Please notify the Veteran that any private medical records for an emergency room visit, potentially on December 13, 2007, are relevant to his claim and that he should submit them. 2. Please ask the Veteran to complete a VA Form 21-4142 for (a.) an emergency room visit, potentially on December 13, 2007, records and (b.) any other private relevant treatment records. 3. Please make two requests for the authorized records from any identified medical providers, unless it is clear after the first request that a second request would be futile. 4. Please be aware that the Board cannot review records in VistA. The following VistA records (dates of uploaded VistA records) must be printed and uploaded into VBMS: (a.) February 14, 2008, (b.) March 14, 2008, (c.) February 2009, (d.) March 2009, (e.) October 2009, (f.) January 2010, (g.) January 12, 2011, (h.) January 28, 2011, (i.) September 2014, (j.) April 2016, (k.) September 2016, (l.) and April 2017. 5. Obtain a supplemental medical opinion from an appropriate VA opinion provider (with examination if deemed necessary by the provider) with regard to the claim for entitlement to compensation under 38 U.S.C. § 1151 for right ear hearing loss due to a November 29, 2007, colonoscopy performed at a VAMC. The opinion provider should address the following: (a.) Is it at least as likely as not that the specific type of anesthesia administered during the November 29, 2007, colonoscopy resulted in hearing loss? (b.) Is it at least as likely as not that the November 29, 2007, colonoscopy otherwise resulted in viral labyrinthitis/inner ear infection? (c.) If the clinician determines the November 29, 2007, colonoscopy (or anesthesia used during the procedure) caused viral labyrinthitis/inner ear infection/hearing loss, please provide opinions as to the following: (i) Whether it is at least as likely as not (a 50 percent or greater probability) that the proximate cause of the viral labyrinthitis/inner ear infection/hearing loss was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing care or treatment. Please explain; and, (ii) Whether it is at least as likely as not (a 50 percent or greater probability) that the viral labyrinthitis/inner ear infection/hearing loss was proximately caused by an event not reasonably foreseeable. A result is not reasonably foreseeable if a reasonable health care provided would not have considered the result as an ordinary risk of the treatment provided. Please explain. 6. After undertaking any other development deemed appropriate, readjudicate the issue on appeal. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Espinoza, 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.