Citation Nr: 18151481 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 15-15 904 DATE: November 19, 2018 REMANDED Entitlement to VA compensation for a left ankle disability claimed as staph infection of the bone of the left ankle, including as pursuant to 38 U.S.C. § 1151 or as secondary to service-connected type residuals of left ankle fracture is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1971 to September 1974. This matter came to the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by the RO, which, in relevant part, denied entitlement to compensation under 38 U.S.C. § 1151 for a disorder claimed as staph infection of the bone of the left ankle due to VA surgical treatment. The Veteran filed a notice of disagreement (NOD) in November 2014. The RO issued a statement of the case (SOC) in April 2015, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans’ Appeals) in May 2015. The Veteran testified before the undersigned at a hearing held at the RO in February 2018. Entitlement to VA compensation for a left ankle disability claimed as staph infection of the bone of the left ankle is remanded. The Veteran seeks entitlement to VA compensation for a left ankle disability claimed as staph infection of the bone of the left ankle due to VA treatment. He contends that this disability is primarily the result of or has been chronically worsened by VA surgical treatment on his left ankle, with complications resulting in this disability. Although this matter was adjudicated pursuant to 38 U.S.C.A §1151, his representative has argued that this claim is also to be considered on the basis of secondary service connection from his service connected left ankle disability of residuals of fracture with skin graft and traumatic arthritis. Additionally, he is service connected separately for a surgical scar of the left ankle from this surgery. As pointed out by the representative, the scope of the March 2014 VA examination was limited to questions pertaining to the 1151 claim, specifically as to whether the disability was the result of or primarily the result of VA treatment. Regarding the 1151 question, the March 2014 examiner addressed this with adequate rationale provided as to why no additional disability resulted from either carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. It was also determined that any additional resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider and finally found against the contention that failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. However, the examiner did not address whether the complications claimed as staph infection of the bone are due to or have been aggravated beyond natural progression by the service connected left ankle disability. The Board notes that the August 2, 2008 surgery, which began the course of complications that formed the basis for the 1151 claim, was performed to treat the service connected left ankle disability of fracture residuals with skin graft and traumatic arthritis. Additionally, the Veteran has described symptoms that appear to warrant further investigation. At his February 2018 hearing he described symptoms of constant tingling in his left lower extremity that began after the surgery. Hence, it was suggested at the hearing that another VA examination might be appropriate to determine whether he may have a separate neurological disability that could potentially be secondary to the service connected left ankle disability. Moreover, the March 2014 VA examination which provided an opinion that the Veteran’s left ankle disorder was not a staph infection, but was infected with multiple other organisms and was less likely caused or worsened by the VA treatment at issue, did not include a review of the complete and contemporary records currently before the Board. This now includes findings from wound care records for persistent non-healing wound, with other additional manifestations such as chronic venous stasis and dermatitis noted in October 2014. Additionally, his symptoms of tingling and numbness in his left lower extremity reported at his February 2018 hearing were reported in a March 2017 VA treatment record which diagnosed neuropathy. Accordingly, the Board finds that another VA examination is needed to identify the disability or disabilities currently manifested as a result of surgical complications from treatment of the service connected left ankle disability of residuals of fracture with skin graft and traumatic arthritis, and provide an opinion as to whether these manifestations are secondary to his service-connected left ankle disability. Given that the grant of service connection on a secondary, causation, basis will render the issue of entitlement to compensation under 38 U.S.C. § 1151 moot, the Board will defer consideration of the latter claim until development on the former is complete. Compare 38 C.F.R. § 3.310 (a) (“disability which is proximately due to or the result of a service-connected disease or injury shall be service connected”) with 38 U.S.C. § 1151 (“Compensation under this chapter... shall be awarded for a qualifying additional disability... in the same manner as if such additional disability... were service connected”) Additionally, the Veteran acknowledged continued VA treatment for his left ankle disorders. The most recent VA treatment records are noted to be dated in June 2017. Thus, the more current VA treatment records should be obtained. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from June 2017 to the present. (Continued on the next page)   2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any disability of the left lower extremity manifested by residual infection/nonhealing wound, including any neurological, vascular, and/ or muscular residuals. The examiner must opine whether any disability of the left lower extremity manifested by residual infection/nonhealing wound, including any neurological, vascular, and/ or muscular residuals is at least as likely as not related to his service connected left ankle fracture, including any surgical treatment for this fracture, proximately due to his service connected left ankle fracture with skin graft and traumatic arthritis, including any surgical treatment for this fracture, or has been aggravated beyond its natural progression by his service connected left ankle fracture with skin graft and traumatic arthritis, including any surgical treatment for this fracture. Any opinion offered should include a comprehensive rationale based on sound medical principles and relevant facts of this case. If aggravation is found, the examiner should identify the baseline level of disability prior to the aggravation. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Eckart, Counsel