Citation Nr: 1310301 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 10-37 113 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for nerve damage of the bilateral legs with loss of balance. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In May 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge, seated at the RO (Travel Board hearing). A transcript was produced and associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. For the reasons set forth below, the Board finds that additional development is required in this case. Initially, the Board notes that VA administrative records relevant to this claim are missing from the claims file. The Veteran claims that he developed neurological disorders after VA surgeons performed three separate surgical procedures in treating vascular disorders of his lower extremities. The VA treatment records on file indicate that the Veteran underwent a right popliteal artery exposure in August 2004; a right distal superficial femoral artery to below the knee popliteal, reverse saphenous vein bypass graft in September 2004; and a left femoral to posterior in situ bypass graft in March 2005. Although the RO procured the VA treatment records regarding each of these procedures, the RO did not procure the VA administrative records, to include any informed consent forms signed by the Veteran. As such records would be relevant to the matter before the Board, as part of this remand, the AMC/RO should procure any VA administrative records, to include any informed consent forms, related to the respective August 2004, September 2004, and March 2005 surgical procedures, and associate them with the claims file. To assist the Veteran with this claim, in July 2009, the RO procured a VA medical opinion regarding the respective etiologies of the Veteran's diagnosed neurological disorders of the bilateral lower extremities. In the July 2009 VA medical opinion, after a review of the claims file, a VA clinician noted that the Veteran had been diagnosed as having sensory neuropathy of the bilateral lower extremities, left foot drop, and right calf numbness. Having reviewed the claims file, the VA clinician indicated agreement with a January 2007 VA neurology consultation report, in which a VA neurologist found that the Veteran's bilateral sensory neuropathy was related to his chronic alcohol abuse. Regarding the Veteran's noted left foot drop and right calf numbness, the VA clinician reported that both disorders were more likely than not related to the Veteran's surgical procedures. Having reviewed the evidence, the VA clinician opined that the left foot drop and right calf numbness were not the result of carelessness, negligence, or lack of skill on the part of VA medical personnel. The VA clinician stated that nerve damage was a recognized sequela of operations on arteries located close to nerves. The VA clinician stated that she did not believe that VA failed to diagnose or treat the Veteran's neurological disorders, as the documentation indicated that VA recognized the disorders postoperatively and the disorders resulted from an event that could not have been reasonably foreseen. While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). In adjudicating claims under 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012), the Board must determine whether the proximate cause of a Veteran's additional disability was an event not reasonably foreseeable based on what a reasonable health care provider would have foreseen. To find that an event was not reasonably foreseeable, the Board need not find that the event was completely unforeseeable or unimaginable, but, instead, must find that the event was such that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In the July 2009 medical opinion, the July 2009 VA clinician wrote that the Veteran's left foot drop and right calf numbness were recognized sequela of operations on arteries located close to nerves. Yet, the VA clinician also wrote that the Veteran's left foot drop and right calf numbness resulted from events that could not have been reasonably foreseen. Therefore, the July 2009 VA clinician's opinion is inadequate as it presents a contradictory answer as to whether the Veteran's diagnosed neurological disorders were caused by events that that a reasonable health care provider would not have foreseen. As such, the Board finds that another VA medical opinion is required in this matter. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that once VA undertakes the effort to procure a medical opinion, it must procure an adequate one). Finally, any recent VA treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's complete treatment records from the Providence and/or Newport, Rhode Island, VA treatment facilities, dated since January 2009. Also, obtain the VA administrative records, to include any informed consent forms, regarding the surgical procedures performed by VA personnel on the Veteran's lower extremities on August 2, 2004, September 13, 2004, and March 1, 2005. 2. Thereafter, schedule the Veteran for a VA neurological examination of his lower extremities. The claims file, including a copy of this remand, should be made available to the examiner. Any indicated diagnostic tests and studies should be accomplished prior to the completion of the examiner's report. The examiner should describe all pertinent symptomatology and findings. The examiner must identify all neurological disorders of the lower extremities found to be present (i.e., sensory neuropathy, foot drop, leg numbness, etc.) The examiner must provide an opinion as to each of the following questions: (a) Did the Veteran suffer additional neurological disability or disabilities due to the VA surgeries performed on August 2, 2004, September 13, 2004, and March 1, 2005, or any subsequent post-surgical treatment? (b) If the Veteran has additional neurological disability due to the aforementioned VA surgical procedures or any subsequent post-surgical treatment, for each additional disability so identified, was the proximate cause of the disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination? Did VA exercise the degree of care that would be expected of a reasonable health care provider? (c) Is any additional neurological disability due to an event that was not reasonably foreseeable? The examiner is requested to note the evidence of record, to include the July 2009 VA medical opinion. A complete rationale for any opinion expressed should be provided. 3. Next, review the evidence procured as a result of this remand and ensure that the remand directives have been accomplished, and return the case to the VA clinician if all questions posed are not answered. 4. Finally, re-adjudicate the claim on appeal. If the benefit sought is not granted, the Veteran should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).