Citation Nr: 18159969 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 17-04 325 DATE: December 21, 2018 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a total left knee arthroplasty, to include a left lower extremity neurological condition, resulting from VA treatment is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1969 to September 1970. This appeal comes before the Board of Veterans’ Appeals (Board) from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). When a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, compensated work therapy, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. Under 38 U.S.C. § 1151, there must be a showing of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on part of VA or evidence of an event not reasonably foreseeable in order to establish entitlement to compensation. To establish causation, the evidence must show that VA’s hospital care, medical or surgical treatment, or examination resulted in additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. 38 C.F.R. § 361 (c)(1). Such VA treatment cannot cause the continuance or natural progress of a disease or injury for which such care was furnished unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361 (c)(2). In this case, a July 2015 VA medical opinion indicated that the Veteran did sustain an additional disability following his August 2014 total left knee arthroplasty. Specifically, the July 2015 VA examiner confirmed that the Veteran sustained a peroneal nerve disability after the surgery, which led to the weakness and loss of sensation in the left lower extremity. The examiner also opined that there was no record of any VA carelessness, negligence, lack of proper skill, or error in judgment in the operative report for the surgical procedure; however, the examiner did not provide an adequate rationale for this opinion. In this regard, the July 2015 VA examiner stated that “the weakness in the left foot dorsiflexors, first mention in the records on 09/16/2014 in an orthopedic note, could have been evaluated sooner with MRI of the lumbar spine and EMG/NCS rather than having these tests done at the beginning of 12/2014, though it is not clear if that would have made a difference in the end result.” The Board finds that a medical opinion is required to assist in determining whether VA’s decision to not perform an earlier evaluation of the Veteran’s left foot symptoms (through MRI or EMG/NCS) resulted in VA carelessness, negligence, lack of proper skill, or error in judgment in the operative report for the surgical procedure. Further, the Board concludes that the informed consent forms signed by the Veteran prior to his August 2014 surgical procedure must be obtained to determine the complications he was warned of prior to undergoing surgery. See July 2014 VA treatment record (noting that full consent document was accessed through Vista Imaging). As it stands, the claims file contains insufficient medical evidence to resolve the Veteran’s claim under 38 U.S.C. § 1151. The matter is REMANDED for the following actions: 1. Obtain a copy of the signed informed consent form from Vista Imaging, referenced in the July 22, 2014 VA medical record regarding the Veteran’s total knee arthoplasty. 2. After the signed informed consent form(s) described in directive #1 are associated with the claims file, forward the claims file to an appropriate VA examiner to obtain a medical opinion. The examiner is asked to review all relevant evidence in the claims file. The examiner should then address the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s left lower extremity neurological disability resulted from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in the surgery? (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s left lower extremity neurological disability resulted from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in failing to timely evaluate the weakness in the left foot (with MRI of the lumbar spine and/or EMG/NCS) rather than having these tests done in December 2014, approximately 3 months following the Veteran’s initial complaints? (c.) Is it at least as likely as not (50 percent probability or greater) that there was failure on the part of VA to timely diagnose and/or properly treat the claimed neurological disability which allowed the disability to continue or worsen? (d.) Did VA fail to exercise the degree of care that would be expected of a reasonable health care provider? (e.) If the answer to (a), (b), (c), and (d) is NO: was the Veteran’s left lower extremity neurological disability due to an event not reasonably foreseeable by the health care provider? (Continued on the next page)   The examiner is requested to provide complete rationales for any opinion expressed. If an opinion cannot be provided 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. LAURA E. COLLINS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Casadei, Counsel