Citation Nr: 1702318 Decision Date: 01/27/17 Archive Date: 02/09/17 DOCKET NO. 13-00 766 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability resulting from a March 2010 Achilles tendon repair performed at a VA Medical Center (VAMC). REPRESENTATION Veteran is represented by: The American Legion ATTORNEY FOR THE BOARD C. Banister, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1978 to December 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks compensation under 38 U.S.C.A. § 1151 for additional disability resulting from a March 2010 Achilles tendon repair performed at the North Chicago VAMC. A veteran may be awarded compensation for additional disability, not the result of his willful misconduct, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA, either by a VA employee or in a VA facility as defined in 38 U.S.C.A. § 1701 (3)(A), and the proximate cause of the disability was: (A) 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 (B) an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. § 3.361 (2016). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical care caused a veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death; and that: (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. 38 C.F.R. § 3.361(d)(1). The Veteran underwent a VA examination in June 2012, during which he reported injuring his left Achilles tendon playing basketball in 2010. In March of that year, he underwent surgical repair of his Achilles tendon at the North Chicago VAMC. During the examination, the Veteran reported post-surgical symptoms of numbness and shock-like sensations in left foot. The examiner opined that the Veteran's left Achilles tendon condition was less likely than not worsened as a result of the Achilles tendon repair performed at the North Chicago VAMC and provided the following rationale, in relevant part: [The] Veteran's current complaints are symptoms that can occur as [a] consequence of surgical repair of [a] ruptured Achilles tendon. [The] Veteran signed [a] consent form for surgical repair of ruptured Achilles tendon on March 18, 2010. Item 12 of the consent form lists risks of treatment/procedure. These risks include incomplete recovery of normal function; incomplete relief of pain; damage to nerves; stiffness and decreased range of motion; temporary and permanent pain, numbness or weakness from nerve injury. I am unable to comment on carelessness, negligence, lack of proper skill, etc. as this is beyond my scope of practice. Because the examiner could not provide an opinion as to whether the Veteran's left foot symptoms were caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, the Board finds that a remand is necessary in order to obtain a supplemental opinion from an examiner with the requisite knowledge and expertise to address this issue. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is REMANDED for the following action: 1. Provide the claims file to a VA podiatrist or orthopedic foot surgeon. If another examination is deemed necessary to respond the question, one should be scheduled. After a review of the claims file, including VA treatment records of the March 2010 Achilles tendon repair and a June 2012 VA examination report, the examiner should answer the following: a. Is it at least as likely as not (50 percent or higher probability) that the March 2010 Achilles tendon repair resulted in the Veteran's claimed symptoms of numbness and shock-like sensations in left foot? Please explain why or why not. b. If it is determined that the Veteran's current left foot symptoms resulted from the March 2010 Achilles tendon repair, is it at least as likely as not (50 percent or higher probability) that such symptoms were the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the surgical procedure? Please explain why or why not. 3. After undertaking the development above and any additional development deemed necessary, the claim for compensation under 38 U.S.C.A. § 1151 should be readjudicated. If the benefit sought on appeal remains denied, the Veteran should be furnished a supplemental statement of the case and given an appropriate period to respond thereto before the case is returned to the Board, if in order. The Veteran 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). _________________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2016).