Citation Nr: 1329098 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 10-10 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for a left foot disability, claimed as an additional disability as a result of VA medical treatment in May 2006. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from August 1976 to August 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. Jurisdiction was subsequently transferred to the RO in Indianapolis, Indiana. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran sought treatment at a VA facility on May 18, 2006 for a left foot injury. X-rays were taken, and a left foot sprain was diagnosed. Shortly thereafter, he went to the emergency room (ER) at a VA facility on May 24, 2006 complaining of dizziness and difficulty breathing. He claims he was forced on a treadmill for a cardiac stress test despite his left foot injury. When he sought follow-up treatment for his left foot in June 2006, x-rays at that time, revealed a left foot fracture. The Veteran believes the left foot fracture and current residual left foot disorder was a result of the treadmill test administered by VA on May 24, 2006 despite the fact that he had a left foot injury. The medical evidence indicates the Veteran was seen at a VA facility on May 18, 2006 complaining of a left foot injury three days prior. The VA podiatrist and radiologist at that time read the x-ray and found no signs of a fracture. The Veteran was diagnosed with a left foot sprain. The May 24, 2006 ER visit and treadmill test are also confirmed in the record. There is no indication the Veteran complained of foot pain at that time, although the test was concluded after target heart rate was reached and due to "leg fatigue." June 2006 records indicate follow-up VA podiatry appointments. On June 15, 2006, a VA radiologist reviewed the May 18, 2006 x-ray and opined that on second look, "there are subtle findings of fracture on that x-ray." An additional x-ray was afforded on June 29, 2006 where a lis francs fracture of the left foot was confirmed. Entitlement to disability benefits are warranted where there is evidence of an additional disability proximately caused by VA hospital care, medical or surgical treatment, or examination, and the proximate cause of the additional disability was either: (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (2) an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002). The Board previously remanded this claim to resolve whether any failure to previously diagnose a fracture or the Veteran's May 24, 2006 cardiac stress test caused an additional left foot disability and, if so, whether the additional disability was proximately due to either (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (2) an event not reasonably foreseeable. Id. The Veteran was afforded a VA examination in May 2012, with opinions obtained from a VA physician, VA podiatrist, and VA radiologist in June 2012. The examiners in this case found it possible that the Veteran had a fracture prior to the treadmill test, and the treadmill test could have aggravated the fracture. At the same time, the examiners also found it possible that the treadmill test caused a left foot fracture. All examiners concluded, however, that a definitive opinion could not be formed without resorting to mere speculation. After all opinions were obtained, the VA examining physician concluded in a June 2012 opinion that "it is at least as likely as not, [Veteran's] left foot condition could have been aggravated by stress test done on 5/24/2006, as stated by Radiologist. Since there are no x-rays immediately preceding the stress test and immediately after the stress test it is mere speculation." The VA podiatrist also opined in June 2012 that "no negligence was seen in this case" and the "providers treated the patient in a manner that would be expected of any reasonable health care provider." The Board finds the collective opinions obtained from the VA physician, VA podiatrist, and VA radiologist were not responsive to the Board's prior remand request. Significantly, the opinions focused solely on the May 24, 2006 ER visit and did not address whether the May 18, 2006 VA physician's failure to recognize a left foot fracture on x-ray caused an additional or aggravated a disability of the left foot due to fault on the part of VA or due to an event not reasonably foreseeable. None of the opinions, moreover, discussed whether the left foot disability was reasonably foreseeable. "The proximate cause of an additional disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause." 38 C.F.R. § 3.361(d) (2012). Whether the proximate cause of a veteran's additional disability 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 within an informed consent form. Id. The VA must seek a clarification opinion from the VA physicians or otherwise obtain a new opinion. See also Stegall v. West, 11 Vet. App. 268 (1998) (holding the Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain these records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. After obtaining the above records to the extent available, an addendum opinion from the VA physicians who completed the May 2012 examination and June 2012 addendum opinions must be obtained. If the any physician is not available, a new opinion from an appropriate VA physician must be provided. In either case, the claims file and all electronic records, to include on Virtual VA, must be made available to the examiners, and the examiners must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. After reviewing the evidence of record, including this remand, the VA physicians are asked to clarify whether the May 18, 2006 misdiagnosis of left foot sprain (versus a left foot fracture) or the May 24, 2006 cardiac stress test caused or aggravated his left foot fracture or caused any other additional left foot disability. If so, the VA physicians are also asked to clarify whether the additional left foot disability was proximately caused by (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care or (2) an event not reasonably foreseeable. The physicians are instructed that "proximate cause" of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. An "event not reasonably foreseeable" is 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. Based on the above definitions and review of the record, the physicians must answer the following questions: (a) Did the Veteran have additional or aggravated disabilities proximately caused by VA treatment on May 18, 2006 (the day of the initial foot x-ray) or on May 24, 2006 (the day of the cardiac stress test), to include the misreading of the May 18, 2006 x-ray and the May 24, 2006 treadmill test? If the answer is yes, specifically identify the additional disability or disabilities. (b) If the Veteran had additional or aggravated disabilities proximately caused by VA treatment on May 18, 2006 or May 24, 2006, state whether the proximate cause of each additional or aggravated disability was 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. (c) If the Veteran had additional or aggravated disabilities proximately caused by VA treatment on May 18, 2006 or May 24, 2006, state whether the proximate cause of each additional or aggravated disability was due to an event not reasonably foreseeable. A complete rationale for all opinions must be provided and the physicians to address and reconcile the opinion with the other opinions of record, to include the May 2012 VA examination and June 2012 VA addendum opinions. If a physician cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The physician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the physician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).