Citation Nr: 19190870 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 17-53 065 DATE: December 3, 2019 REMANDED Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residuals of removal of a pilonidal cyst is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2006 to March 2007 and from June 2012 to September 2013. This matter is before the Board of Veterans Appeals (Board) on appeal from a November 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Although further delay is regrettable, the Board finds that additional development is required before the Veteran’s claim is decided. In the November 2016 rating decision currently on appeal, the RO characterized the Veteran’s claim as “service connection for mild L4-L5 and L5-S1 spondylosis, as secondary to service-connected pilonidal cyst removal with scar.” The Veteran’s general contention is that his claim was mischaracterized by the RO. The Veteran’s January 2016 claim application described his claimed disability as “chronic lower back pain secondary to Pilonidal Cyst, caused and complicated by epidural shots.” See January 2016 VA 21-526EZ, Fully Developed Claim. In his March 2017 Notice of Disagreement, the Veteran again characterized the issue he was appealing as “service connection for chronic back pain” explaining that he has had chronic pain ever since the in-service pilonidal cyst surgery. Nevertheless, in a September 2016 request for a VA examination, the RO requested a direct service connection opinion containing a request for information that made it unclear whether the opinion being sought was under a secondary connection theory. See September 2016 VA 21-2507a Request for Physical exam. The Veteran was afforded a VA back examination in June 2016. The examiner diagnosed the Veteran with mild L4-L5 and L5-S1 spondylosis. The examiner noted objective evidence of pain on range of motion testing. The examiner opined that it was less likely than not that the claimed condition was incurred in or caused by the claimed in service injury, event, or illness. In the rationale for the opinion, the examiner noted that there is no medical evidence to suggest that the Veteran’s current lumbar spondylosis was caused by the removal of the pilonidal cyst or complicated by epidural shots. See June 2016 VA examination. In his formal appeal, the Veteran again alleged that the RO mischaracterized his claim and that he is seeking compensation for chronic back pain which, and more specifically that when “the epidural was done a nerve might have been hit thus causing [his] chronic back pain.” See October 2017 Form 9. The Board finds that the Veteran has been consistent in his allegations that the June 3, 2013 surgery has caused him the additional disability of chronic back pain. The Veteran has never alleged that his lumbar spondylosis was due to cyst removal surgery, or that it was secondary to his service-connected residual scar from the surgery, as the issue was characterized by the RO at various points during the pendency of this appeal. Accordingly, the Board has recharacterized the issue above as entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residuals of pilonidal cyst removal surgery on June 3, 2013. Therefore, the Board finds the June 2016 VA examination to be inadequate and another examination is warranted in order to adequately evaluate the Veteran’s § 1151 claim and determine whether the Veteran has any additional disability resulting from VA surgical treatment. The matter is REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file any outstanding VA treatment records. If possible, the Veteran himself should submit any pertinent new evidence regarding the conditions at issue in order to expedite the claims 2. Then, schedule the Veteran for a VA examination to determine whether the Veteran has any additional disability as a result of his in-service June 3, 2013 pilonidal cyst excision surgery, including the epidural shots. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The evidence of record must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. 3. If the examiner finds any additional disability, to include chronic back pain, due to the June 3, 2013 pilonidal cyst removal procedure, the examiner must provide an opinion as to whether the additional disability proximately was caused by: (a.) carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of the VA in treating the Veteran; and if so, did VA fail to exercise the degree of care that would be expected of a reasonable health care provider OR did VA furnish the care without the Veteran’s informed consent? (b.) Was the additional disability proximately caused by an event not reasonably foreseeable? The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with VA’s informed consent procedures. 38 C.F.R. § 17.32. 4. A complete rationale for any opinion must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. (Continued on the next page)   5. After undertaking the development above and any additional development deemed necessary, the Veteran’s claim should be readjudicated. 6. If the benefit sought on appeal remains denied, the appellant should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board, if in order. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Victor Woehlke 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.