Citation Nr: 19177635 Decision Date: 10/08/19 Archive Date: 10/08/19 DOCKET NO. 14-20 158A DATE: October 8, 2019 THE ISSUE Entitlement to compensation under 38 U.S.C. § 1151 for additional disability to the lumbar spine (claimed as back disability). REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for additional disability to the lumbar spine (claimed as back disability), is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1973 to March 1976. He subsequently served in the Army Reserve. This matter is before the Board of Veterans Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In May 2018, the Board remanded this matter to obtain missing documents and for a VA addendum medical opinion. Although the Board regrets the further delay, it finds that an additional remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to compensation under 38 U.S.C. § 1151 for additional disability to the lumbar spine (claimed as back disability), is remanded. The Veteran contends that he fell during a VA examination on November 18, 2010, and sustained additional disability to his back due to carelessness by the examiner. He reports that he spoke after this incident to a VA patient advocate about the carelessness. A nursing note associated with that visit show that the Veteran “slid” off examining bed and landed on buttocks with Veteran reporting then that he hit his back on chair and that he slid due to wearing socks. An examiner’s note associated with that visit shows that the Veteran, on rising from the exam table, “slid slowly” to the floor after his knees gave way. In a May 2018 Board decision, the Board remanded the matter to obtain all pertinent records from the Winston-Salem VA Outpatient Clinic, including all incident reports by the examiner and the medical support assistant and any record created by the patient advocate Mark Holmes concerning the incident. Additionally, the Board ordered a new VA medical opinion to determine if the Veteran sustained an additional disability, and if it was at least as likely as not that the proximate cause of any additional disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA. While the Veteran was afforded a new VA examination and medical opinion in August 2019, the Board notes that it does not appear the VA obtained, or associated with the claims file, the incident report made by the November 2010 VA examiner or the patient advocate Mark Holmes. Therefore, the Board finds that the RO did not substantially comply with its directives. See Stegall, 11 Vet. App. 268 (1998). Accordingly, a remand is necessary to obtain the missing November 18, 2010 VA incident report and report by the patient advocate Mark Holmes. If the RO is able to obtain such documents, a new medical opinion, based on the entire record, is necessary. The matters are REMANDED for the following action: 1. Obtain and associate with the record all pertinent VA records from the Winston-Salem VA Outpatient Clinic including all incident reports completed by the examiner and the medical support assistant, and any record created by the patient advocate Mark Holmes concerning the incident. All attempts to secure this evidence, to include any negative response, must be documented in the claims file. In compliance with 38 C.F.R. § 3.159 (c) (2), the Agency of Original Jurisdiction (AOJ) must make as many requests as are necessary to obtain records in the custody of a Federal department or agency and shall not end its efforts to obtain those records unless it concludes that the records sought do not exist or that further efforts to obtain those records would be futile. If, after all procedurally appropriate actions to locate and secure the records have been made and the AOJ concludes that such records do not exist, that further efforts to obtain the records would be futile, the AOJ must make a formal finding to that effect. The AOJ must notify the Veteran of (a) the identity of the specific records that cannot be obtained, (b) an explanation as to the efforts that were made to obtain those records, (c) a description of any further action to be taken by VA with respect to the claims, and (d) notice that the Veteran is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159 (e). The Veteran must then be given an opportunity to respond. Attempts should be made to obtain identified records. All attempts to fulfill this development should be documented in the claims file. 2. If, but only if, the AOJ is able to obtain the above-mentioned evidence, return the claims file to the August 2019 VA examiner to obtain an addendum medical opinion to address whether the Veteran sustained additional disability to his lumbar spine related to his fall in November 2010 at the Winston-Salem VA Outpatient Clinic. The clinician should specifically address the following: (a) Did the Veteran sustain “additional disability” to his lumbar spine due to his fall during VA examination in November 2010? If so, the additional disabilities should be clearly identified. If there is no “additional disability,” then the clinician does not need to provide an answer to (b) but must provide a comparison of the Veteran’s condition prior to the fall and after the fall to support the conclusion of “no additional disability.” (b) If additional disability or disabilities exist, is it at least as likely as not (50 percent or greater) that the proximate cause of such disability or disabilities was carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA? In determining whether the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, please discuss if VA failed to exercise the degree of care that would be expected of a reasonable health care provider. Address the suggestion that “fault on the part of VA” is demonstrated by the examiner’s failure to obtain additional help in assisting the Veteran with transferring locations. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; it must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, the clinician should so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.