Citation Nr: 1815128 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 09-18 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the loss of smell and taste following pituitary tumor removal surgery. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty with the U.S. Army from March 1959 to February 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in San Juan, Puerto Rico. In October 2009, the Veteran was afforded a hearing before the RO. In July 2011 and July 2017, this appeal was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to compensation under 38 U.S.C. § 1151 for additional disability, which he believes is the result of surgery performed at the San Juan VA Medical Center (MC) on June 14, 2007. He asserts that several months following transsphenoidal surgery to remove a pituitary tumor, he noticed the loss of smell and taste. See VA Form 21-526 and VA Form 21-4138 received in May 2008. At his October 2009 RO hearing, the Veteran testified that although he was briefed by the medical staff about the complications that could occur if he did not have surgery, he was never advised of the possibility that he could lose the senses of smell and taste. Essentially, he contends that he was not fully informed of the risks of the surgery and therefore did not provide informed consent. In July 2017, the Board remanded this matter for additional development. Specifically, the Board remand directed the AOJ to obtain a medical opinion as to whether the post-operative loss of smell and taste was an event not reasonably foreseeable and that addresses the Veteran's contention that he was not fully informed of the risks of surgery. The Board noted that the October 2008 VA medical opinion did not address the issues of whether the additional disability was an event not reasonably foreseeable or whether the Veteran was fully informed of the risks of surgery. A second VA medical opinion was obtained in September 21017 but this VA medical opinion also does not address whether the post-operative loss of smell and taste was an event not reasonably foreseeable and did not address the Veteran's contention that he was not fully informed of the risks of surgery. The Board finds that this matter must be remanded to the AOJ in order to obtain substantial compliance with the instructions of the July 2017 remand. Stegall v. West, 11 Vet. App. 268 (1998). Another VA medical opinion is required because the October 2008 and September 2017 VA medical opinions are inadequate. VA's duty to assist includes obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A (d) (West 2012). See also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA takes action to furnish a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Ask the VA examiner who conducted the September 2017 VA examination (or if no longer available, a suitable replacement) to prepare an addendum medical opinion on the following questions: (a): Based on comprehensive review of the claims file the examiner is asked to opine as to whether the Veteran's loss of smell and taste reflects an event that could not reasonably have been foreseen or anticipated by a competent and prudent health care provider in relation to the transsphenoidal surgery to remove a pituitary tumor. (b): When considering whether the identified additional disability was caused by an event not reasonably foreseeable, the physician should address whether a "reasonable health care provider" would have considered the Veteran's claimed of loss of smell and taste to be an ordinary risk of the treatment provided and would have disclosed such risk in connection with such treatment, regardless of what risks the treatment provider actually anticipated and disclosed. (c): Based on comprehensive review of the claims file the examiner is asked to opine as to whether the Veteran's loss of smell and taste reflects carelessness, negligence, lack of proper skill, error in judgment, or other instance of fault on the part of VA prior to and in performing the transsphenoidal surgery to remove a pituitary tumor (whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider). A complete rationale should accompany the opinions provided and should be based on examination findings, historical records, and medical principles. If the VA examiner determines that the Board's questions cannot be answered without an examination, one should be scheduled. 2. After completing all indicated development, readjudicate the issue on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, issue a fully responsive Supplemental Statement of the Case to the Veteran and representative, and they should be afforded a reasonable opportunity for response. The appellant 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 (West 2012). _________________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).