Citation Nr: 1754086 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 13-31 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to compensation under 38 U.S.C. § 1151 for additional disability claimed to have been sustained as a result of treatment at the Atlanta VA Medical Center (VAMC) following a March 2009 right ankle fracture, to include a right ankle disability and deep vein thrombosis. 2. Entitlement to service connection for a low back disability with right leg pain, to include as secondary to a right ankle disability. 3. Entitlement to service connection for a bilateral knee disability, to include as secondary to a right ankle disability. 4. Entitlement to service connection for a bilateral shoulder disability, claimed as secondary to a right ankle disability. 5. Entitlement to service connection for depression, to include as secondary to a right ankle disability. 6. Entitlement to service connection for a respiratory condition, to include bronchitis and asthma. 7. Entitlement to service connection for hypertension. 8. Entitlement to service connection for severe headaches. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD C. Jones, Counsel INTRODUCTION The Veteran had active service from May 1984 to March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran, who sustained a fracture of the right ankle in March 2009, contends that she incurred additional right ankle disability and deep vein thrombosis as a result of treatment she received at the Atlanta VAMC for that fracture. She further contends that as a result of the additional right ankle disability she sustained, she was required to use crutches and carry her weight in an unusual manner, which led to secondary knee, shoulder, and low back disabilities. She also claims that she developed depression secondary to these physical disabilities. In the alternative, the Veteran claims that direct service connection is warranted for depression, bilateral knee, and low back disabilities, as she was treated for these conditions during active duty. The Veteran also claims to have been treated for a respiratory condition, to include bronchitis and asthma, hypertension, and severe headaches during active duty, and contends that service connection is therefore warranted. In light of the Veteran's contentions, for purposes of clarity and to ensure that the Veteran's multiple theories of entitlement are appropriately addressed, the Board has recharacterized some of the issues on appeal. In light of the remand of these issues below, no prejudice has resulted. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran asserts that an additional right ankle disability and deep vein thrombosis were caused by treatment she received at the Atlanta VAMC, including March 2009 and November 2009 surgeries. The Veteran underwent a VA examination in April 2011 based on a claim under 38 U.S.C. § 1151 for a right ankle disability. The examiner diagnosed right ankle fracture, status post fixation and revision history of chronic osteomyelitis. The examiner determined that the claimed disability is less likely as not caused by or became worse as a result of the VA treatment. He also opined that the additional disability is less likely as not to have resulted from carelessness, negligence, lack of skill, or similar incident of fault from the VA or resulted in an event that could not have been reasonably foreseen by a healthcare provides. The examiner further concluded that the alleged failure on the part of VA to timely diagnosis and/or properly treat the claimed disease or disability is less likely as not to have allowed the disease or disability to continue to progress. The Board finds that an addendum medical opinion is needed prior to adjudicating the Veteran's 1151 claim. In this regard, medical records subsequent to the April 2011 VA examination suggest that the Veteran's diagnosed deep vein thrombosis is a residual of the surgeries provided by the VAMC. Further, private treatment records note a diagnosis of chronic venous stasis wound with chronic lymphedema and chronic venous insufficiency, which the Veteran asserts is a residual of the right ankle surgeries. Such disabilities were not considered in the previous VA medical opinion. In light of the foregoing, an addendum opinion must be obtained on remand. Given the Veteran's contentions regarding secondary service connection under 38 C.F.R. § 3.310, the claims of service connection for a low back disability with right leg pain, a bilateral knee disability, and a bilateral shoulder disability should be held in abeyance pending completion of this development and subsequent readjudication of the 1151 claim. With respect to the Veteran's claim of service connection for a knee disability, the record on appeal shows that in September 1979, prior to her period of active duty, the Veteran presented for treatment for a right knee injury after a fall. She was diagnosed as having a torn posterior cruciate ligament. At her service enlistment examination, she reported a history of a sprained knee at the age of 18, but indicated that the problem had resolved. No knee disability was noted on enlistment and the remaining service treatment records are entirely negative for complaints or abnormalities pertaining to either knee. In conjunction with her claim, the Veteran was afforded a VA medical examination in November 2010. The examiner diagnosed degenerative joint disease of the right knee and determined that it is at least as likely as not that the right knee condition is related to the Veteran's active service, as the service treatment records documented a 1979 fall which "very well may have led to hastened degeneration in the knee, due to the trauma." The Board finds that the November 2010 VA medical opinion is insufficient to determine the Veteran's claim of service connection for a bilateral knee condition. As detailed herein, the Veteran's right knee injury occurred prior to her period of active service. As the opinion is based on an inaccurate factual premise, it is of little probative value and an additional examination is necessary. Finally, the Board observes that in correspondence received in November 2013, it was noted that the Veteran had applied for disability benefits from the Social Security Administration, claiming to be disabled due to multiple conditions, including deep vein thrombosis, blood clots, asthma, and depression. The letter cited multiple pieces of medical evidence the Veteran had submitted to SSA, most of which are not included in the record on appeal. Under these circumstances, the AOJ should undertake efforts to retrieve records from SSA, as they may be relevant to the Veteran's VA claims on appeal. 38 C.F.R. § 3.159(c)(2017). Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain a copy of any decision to grant or deny SSA disability benefits to the Veteran and the records upon which that decision was based and associate them with the claims file. If the search for such records has negative results, the claims file should be properly documented as to the unavailability of those records. 2. Schedule the Veteran for a VA medical examination, by an examiner who has not previously examined her, for the purpose of determining whether she currently exhibits any additional disability as a result of treatment she received at the Atlanta VAMC following a March 2009 right ankle fracture, including March 2009 and November 2009 surgeries, and, if so, whether the proximate cause of such additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or an event not reasonably foreseeable. Access to records in the Veteran's electronic Virtual VA and VBMS files should be made available to the examiner for review in connection with his or her opinion. After examining the Veteran and reviewing the record, the examiner should provide opinions of the following: a. Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran currently exhibits any additional disability, to include an additional right ankle disability, deep vein thrombosis, chronic lymphedema or chronic venous insufficiency, which was caused by VA medical care in 2009. b. If so, is it at least as likely as not (i.e., a 50 percent or greater probability) that any such additional disability is due to carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of the VA in providing such care? Also, is it at least as likely as not that this was an event that was not reasonably foreseeable? In other words, is this the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures or is this event not considered an ordinary risk of the treatment provided? The examiner should provide a rationale for all opinions rendered, including reference to the pertinent evidence of record, particularly medical records establishing the Veteran's condition prior to and following the 2009 treatment, as well as the Veteran's statements to the effect that she suffered additional disability as a result of the VA treatment. The examiner should also discuss the records indicating that the Veteran's deep vein thrombosis and chronic venous stasis wound with chronic lymphedema and chronic venous insufficiency are residuals of the Veteran's right ankle surgeries. 3. Obtain an addendum opinion from a suitably qualified VA examiner regarding the nature and etiology of the Veteran's bilateral knee disability. Access to records in the Veteran's electronic Virtual VA and VBMS files should be made available to the examiner for review in connection with his or her opinion. An additional VA examination may be provided if deemed necessary. The examiner should provide opinions for the following: (a) Did a bilateral knee disability clearly and unmistakably exist prior to the Veteran's active service from May 1984 to March 1988? (b) If a bilateral knee disability is found to have clearly and unmistakably existed prior to active service, is it also clear and unmistakable that such disability was NOT aggravated (permanently worsened beyond its natural progress) by active service from May 1984 to March 1988? (c) If a bilateral knee disability did not clearly and unmistakably exist prior to military service, is it least as likely as not (a 50 percent or greater probability) that the disability had its onset during service, or is otherwise related to such service? The examiner is advised that clear and unmistakable evidence is an onerous evidentiary standard and means that the evidence is undebatable. However, it does not require the absence of conflicting evidence. Vanerson v. West, 12 Vet. App. 254 (1999); Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). The examiner must provide a comprehensive rationale for all opinions rendered. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. After undertaking any development deemed necessary, readjudicate the issues on appeal, considering all the evidence of record. If any of the benefits sought on appeal remain denied, provide the Veteran and his representative with a Supplemental Statement of the Case and the opportunity to respond. The case should then be returned to the Board for further appellate 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. §§ 5109B, 7112 (2012). _________________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (2012), 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) (2017).