Citation Nr: 18141521 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 13-34 066A DATE: October 10, 2018 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for osteoid osteoma, right tibia with proximal tibia osteomyelitis pathologic fracture and surgical repair (claimed as fractured leg due to injury at Miami VA Medical Center) is remanded. REASONS FOR REMAND The Veteran serviced on active duty in the United States Marine Corps from July 1970 to October 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2017, a Board videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record. In November 2017, the Board remanded the issue of entitlement to compensation benefits pursuant to 38 U.S.C. § 1151 for a VA medical opinion. As discussed below, additional development is necessary.   Entitlement to compensation under 38 U.S.C. § 1151 for osteoid osteoma, right tibia with proximal tibia osteomyelitis pathologic fracture and surgical repair (claimed as fractured leg due to injury at Miami VA Medical Center) is remanded. The Board sincerely regrets the further delay that will result from this remand but finds that additional development is necessary before adjudicating the claim on appeal. The Veteran contends that he fell at the Miami VAMC and fractured his right tibia as a result of VA’s failure to provide him with additional leg protection. He also contends that VA physicians removed too much of his tibia in a December 2010 debridement, which left the bone more brittle than it otherwise would have been and vulnerable to fracture. In a November 2017 remand, the Board directed that certain medical opinions be obtained. In April 2018, Dr. W.S. provided a medical opinion wherein he noted that the extent of the bone involvement and subsequent debridement would have predisposed the Veteran to develop spontaneous fractures at rest or with other forms of minimal physical activity and that it was doubtful that leg protection would have prevented the Veteran’s tibial fracture. Dr. W.S. also found that the Veteran’s right tibia fracture was less likely than not caused by or the result of an event that could have reasonably been foreseen by a reasonable healthcare provider. Unfortunately, it appears that the two statements above are contradictory. The Board notes that the opinion was otherwise thorough and well-reasoned but finds that clarification is necessary. For purposes of 38 U.S.C. § 1151, whether an event is not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen or disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). Therefore, a clarifying opinion is necessary that fully addresses whether the Veteran’s right tibia fracture was an event not reasonably foreseeable. The matter is REMANDED for the following action: Obtain an addendum opinion to address the 38 U.S.C. § 1151 claim from the examiner who provided the April 2018 opinion or an otherwise appropriately qualified clinician if that examiner is unavailable. The examiner is asked to provide a medical opinion as to the following: Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s right tibia fracture was an unforeseeable result of the December 2010 surgical debridements–that is, would a reasonable health care provider have considered the right tibia fracture to be an ordinary risk of the treatment(s) at issue?   The examiner is asked to reconcile the statement from the April 2018 opinion that the Veteran’s surgery predisposed him to develop spontaneous fractures with his opinion that the Veteran’s right tibia fracture could not have been reasonably foreseen by a reasonable healthcare provider. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Thompson, Associate Counsel