Citation Nr: 22019092 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 14-38 386A DATE: March 31, 2022 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 (2012) for pancreatitis is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from June 1980 to October 1986. This matter is on appeal from a February 2016 rating decision. The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2021 and a transcript is of record. In a September 2021 decision, the Board remanded this issue for an additional VA medical opinion. Because the Board finds that additional development is needed, it is unnecessary to determine whether there was substantial compliance with the remand directives at this time. In November 2021 and February 2022 statements, the Veteran's attorney attempts to raise the issues of entitlement to service connection to hypertension, to coronary artery disease, and to pancreatitis as secondary to hypertension or coronary artery disease. However, the only issue currently before the Board is entitlement to compensation under 38 U.S.C. § 1151 for pancreatitis. VA has never received a claim from the Veteran for service connection for pancreatitis, hypertension, or coronary artery disease. If the Veteran seeks service connection for these disabilities, he or his attorney must submit claims for them. 38 C.F.R. § 3.151 (2021). 1. Entitlement to compensation under 38 U.S.C. § 1151 (2012) for pancreatitis is remanded. The Veteran submitted multiple private medical opinions in November 2021. In an opinion with regard to the cause of the Veteran's pancreatitis, a private physician quoted a medical opinion by a private gastroenterologist, Dr. E.P.T. The Board has searched the treatment records from Dr. E.P.T. that have been associated with the claims file and has been unable to locate the language quoted in the November 2021 opinion or any language similar to it. For example, the quoted language references a lack of recurrent episodes of pancreatitis, but an October 2016 treatment record from Dr. E.P.T. specifically notes that the Veteran's pancreatitis was recurrent. Because this raises the possibility that private treatment records containing a medical opinion favorable to the Veteran's claim have not been associated with the claims file, on remand, the Agency of Original Jurisdiction (AOJ) should attempt to obtain any outstanding private treatment records pertinent to this claim. In addition, under 38 U.S.C. § 1151, compensation is awarded for a "qualifying additional disability" in the same manner as if such additional disability or death were service connected. The purpose of the statute is to award benefits to those veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151 (a). To be considered a "qualifying additional disability" in these circumstances, a disability must meet two criteria. First, it must not be the result of the Veteran's willful misconduct. Second, the disability must have been either: (a) caused by hospital care, medical or surgical treatment, or examination furnished to the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility, and the proximate cause of the disability was either (i) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (ii) an event not reasonably foreseeable; or (b) proximately caused by the provision of training and rehabilitation services by the Secretary as part of an approved rehabilitation program. Id. All of the VA and private medical opinions that have been obtained so far regarding this issue have focused on the causation prong of the test, not the fault or foreseeability prongs. Even when an opinion, such as the January 2022 VA medical opinion, has been phrased as including the issue of fault, the rationale has focused on the issue of causation. For the sake of completeness, on remand, the AOJ should also afford the Veteran an additional VA medical opinion that addresses the issues of fault and foreseeability. The matters are REMANDED for the following action: 1. Provide the Veteran with release forms for outstanding medical records generated by any private treatment providers the Veteran saw for his pancreatitis during the period on appeal, including Dr. L.P. and Dr. E.P.T. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. If the Agency of Original Jurisdiction (AOJ) cannot obtain the records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of any unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Arrange for an opinion by an appropriate clinician for the purpose of determining the etiology of the Veteran's pancreatitis. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. The clinician must provide opinions as to the following: a. Whether the Veteran has had pancreatitis during the period on appeal that was caused by VA hospital care or medical or surgical treatment, including as an effect of being prescribed hydrochlorothiazide or lisinopril. b. Whether the Veteran has had pancreatitis during the period on appeal that was aggravated by VA hospital care or medical or surgical treatment, including as an effect of hydrochlorothiazide or lisinopril. The clinician must also provide opinions as to the following. Even if the clinician finds in response to the above that the Veteran's pancreatitis was not caused or aggravated by VA hospital care or medical or surgical treatment, the clinician should assume that it was caused or aggravated by VA hospital care or medical or surgical treatment solely for the sake of providing the opinions requested below. c. Whether the causation or aggravation of the Veteran's pancreatitis by VA hospital care or medical or surgical treatment was proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. d. Whether the causation or aggravation of the Veteran's pancreatitis by VA hospital care or medical or surgical treatment was proximately due to or the result of an event not reasonably foreseeable. The clinician is advised that VA received the Veteran's claim in November 2015. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. The appearance of hydrochlorothiazide and lisinopril on the Veteran's VA outpatient medication lists beginning no later than March 2008. b. Private treatment records from an October 2015 hospitalization for "acute pancreatitis of uncertain etiology, possibly medication induced, resolved," including the treatment provider's opinion that medications including hydrochlorothiazide and lisinopril "may cause pancreatitis." c. A January 2016 VA medication list noting that the Veteran's hydrochlorothiazide and lisinopril were cancelled in November 2015. d. An October 2016 private treatment record noting a diagnosis of recurrent pancreatitis/possible early chronic pancreatitis. e. A February 2019 private treatment record noting a diagnosis of chronic pancreatitis, unspecified pancreatitis type. f. A November 2021 private medical opinion regarding the etiology of the Veteran's pancreatitis. The rationale for any opinion expressed should be provided. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 3. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998) 4. Then, readjudicate the claim. If the decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.