Citation Nr: 1636995 Decision Date: 09/21/16 Archive Date: 09/27/16 DOCKET NO. 12-21 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to compensation benefits for residuals of cardiac catheterization surgery, to include a punctured artery, pursuant to 38 U.S.C.A. § 1151. (A separate decision will be issued on the issue of entitlement to payment or reimbursement of unauthorized medical expenses resulting from private hospitalization in September and October 2009.) REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.S. De Leo, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 1962 to June 1965. This matter comes before the Board of Veterans Appeals (Board) on appeal from an October 2010 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Petersburg, Florida. In March 2015, the Board remanded the claim for further development. For the reasons discussed below, the Board finds that there has not been substantial compliance with the development sought as part of the March 2015 remand. Stegall v. West, 11 Vet. App. 268 (1998). This appeal was processed using the Virtual VA and the Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND This claim was remanded in March 2015 for an opinion regarding whether a hematoma and excessive bleeding that developed after VA treatment was due to VA carelessness, negligence, judgment error, or fault on behalf of the VA surgical care provided to the Veteran, or was an unforeseen consequence of VA medical treatment. See November 2010 Notice of Disagreement and December 2012 Substantive Appeal. In answer to the inquiry, a VA physician in February 2016 concluded that excessive bleeding did not occur secondary to VA treatment. The February 2016 VA physician indicated that with respect to whether the additional disability of the hematoma resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel, the February 2016 VA reviewer opined that: This particular problem is one that can arise due to cardiac catheterization procedure of this type. This particular complication is mentioned among others in the informed consent document that the veteran signed. It is hard to determine when and in which individuals this will occur. It is an unintentional and often unavoidable part of the diagnostic procedure. Therefore the hematoma presence by itself would not be as a result of the carelessness, negligence, lack of skill, or similar incidence of fault on the part of the VA. The February 2016 VA physician added that the hematoma disorder is less likely than not caused by, or a result of an event that could have reasonably been foreseen by a reasonable healthcare provider. In so finding, the examiner explained that: While this may have been a possibility, there was no way to predict when it would have happened or necessarily in preventing it from happening. As such the standard of medical care is such that the veteran is informed of the possible issues that can occur with the operative procedure and then the health care team to address any problems that may arise. The chart notes demonstrate that this did occur. The Board finds that the medical opinion is internally inconsistent and that another opinion needs to be requested. On the one hand, the physician indicates that this is a complication mentioned among others in the informed consent document signed by the Veteran prior to the treatment and that it can be an unavoidable part of the procedure. On the other hand, he concludes that it is not a reasonably foreseeable event. In view of the lack of coherency in the opinion, the Board finds that a clarifying opinion should be provided. Accordingly, the case is REMANDED for the following action: 1. Obtain an opinion from a VA physician who does not work at the Tampa VA facility. The claims file must be provided to and reviewed by the examiner. The examiner must address the following questions: (a) Whether there was any failure to timely diagnose and properly treat the hematoma? (b) Whether additional disability was proximately caused by (1) any carelessness, negligence, lack of proper skill, error in judgment or similar instances of fault by VA or (2) an event not reasonably foreseeable during the course of post-surgical treatment of the hematoma? In determining whether an event is not reasonably foreseeable, the standard is what a "reasonable health care provider" primarily responsible for treatment of the Veteran would have considered to be an ordinary risk of treatment. See Schertz v. Shinseki 26 Vet.App. 362 (2013). The examiner must discuss the Veteran's assertion that he was still bleeding internally at the time of discharge and further treatment or testing should have been performed prior to his discharge. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. 2. Thereafter, readjudicate the claim on appeal. If any benefit sought on appeal remains denied, the appellant and his representative should be furnished a supplemental statement of the case and be provided with an appropriate period of time to respond. The appellant has the right to submit additional evidence and argument on the matter 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 2014). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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) (2015).