Citation Nr: 18155335 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 17-29 570 DATE: December 4, 2018 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for paralysis below the waist due to treatment before and after cardiac catherization is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1960 to October 1961, and from October 1961 to May 1962. This matter is before the Board of Veterans’ Appeal (Board) on appeal from a September 2015 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. On July 20, 2018, the Veteran elected to participate in Rapid Appeals Modernization Program (RAMP), selecting the option for "Supplemental Claim." However, appeals that have been activated by the Board are not eligible for RAMP processing. Moreover, the Veteran was provided with a November 2018 letter stating that the Veteran’s appeal was not RAMP eligible because the appeal was active with the Board. Therefore, the Board will continue with the adjudication pursuant to current appeals procedures. Entitlement to compensation under 38 U.S.C. § 1151 for paralysis below the waist due to treatment before and after cardiac catherization is remanded. The Veteran seeks entitlement to compensation under 38 U.S.C. § 1151 for paralysis below the waist due to treatment before and after cardiac catherization. The Veteran contends that her below the waist paralysis is due to carelessness, negligence, lack of skill, or similar incidence of fault of the attending VA medical personnel in connection with a December 2014 heart catherization. To that end, a May 2017 VA medical opinion addressing whether the Veteran’s below the waist paralysis was the result of carelessness, negligence, lack of skill, or similar incidence of fault of the attending VA medical personnel regarding a December 2014 heart catherization. The VA examiner stated that the Veteran’s treatment record does not indicate any departure from accepted levels of medical care, or the performance of professional duties expected of a reasonable health care provider. Additionally, the examiner stated that the proximate cause of the disability was not carelessness, negligence, lack of skill, or similar incidence of fault of the attending VA medical personnel and that the outcome (paralysis below the waist) was an ordinary risk or a reasonably foreseeable event of the Veteran’s December 2014 heart catherization. However, the Board finds the May 2017 VA medical opinion is inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Although the examiner provided the requested medical opinion, he did not support his medical opinion with adequate rationale. The examiner did not detail why the actions and care provided to the Veteran were without carelessness, negligence, lack of skill, or similar incidence of fault. The examiner provided the Veteran’s medical records related to the December 2014 heart catherization and left to the Board to make medical determinations. Moreover, in the Veteran’s March 2018 Motion to Advance on the Docket, the Veteran identified reasons why the Veteran and her attorney believe that the May 2017 VA medical opinion is inadequate. They identified the following deficiencies: (1) the examiner did not address whether the December 2014 heart catherization was necessary even though the Veteran previously underwent the same procedure, and (2) the Veteran claims medical negligence in the discovery of the hemorrhage that lead to December 2014 operation. She contends that the medical personnel failed to address acute developments in her vitals and neurological deficits consequently omitting appropriate measures to prevent a serious adverse event. Under these circumstances, the Board will not proceed with final adjudication of the claims until a competent medical opinion with supporting rationale is obtained that adequately addresses the etiology of the Veteran’s claimed disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following actions: 1. Forward the record and a copy of this remand to the VA clinician who performed the May 2017 VA medical opinion or, if that clinician is not available, to another similarly qualified VA clinician for preparation of an addendum opinion. Further in-person examination of the Veteran is left to the discretion of the clinician providing the addendum opinion. If the clinician deems such examination necessary to provide the information requested below, then such an examination should be scheduled. (a) Is it at least as likely as likely as not (50 percent probability or greater) that the Veteran incurred additional disability, to include paralysis below the waist, as a result of the December 2014 heart catherization at the VAMC? In providing this opinion, the examiner must consider whether a December 2014 heart catherization was medically necessary despite the Veteran’s having heart catherization performed six months prior, and whether VA medical personnel was negligent in not discovering the hemorrhage sooner, thus prevent the Veteran’s claimed injury. The examiner should consider the Veteran’s contentions in the March 2018 Motion to Advance on Docket. (b) If additional disability exists, as a result of a December 2014 heart catherization, is it at least as likely as not (50 percent or greater) that 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? (c) Notwithstanding any informed consent documents, the examiner must also state whether any additional disability, to include paralysis below the waist, was a reasonably foreseeable outcome of the procedure based upon the specific facts and circumstances of this Veteran's case. In determining whether an event is not reasonably foreseeable, the standard is what a “reasonable health care provider” would have considered to be an ordinary risk of treatment that would be disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32, which requires the primary health care provider to explain the reasonably foreseeable risks associated with the surgery or treatment being provided. The physician is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the physician rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. Should the physician decide that a physical examination of the Veteran is required to address these questions, one should be scheduled. If the physician is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The physician must provide a rationale for each opinion given. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. R. Higgins, Associate Counsel