Citation Nr: 19153232
Decision Date: 07/10/19	Archive Date: 07/10/19

DOCKET NO. 08-09 181
DATE:	July 10, 2019

REMANDED

Entitlement to compensation under 38 U.S.C. § 1151 for osteomyelitis of the left ischium, claimed as due to VA treatment of a decubitus ulcer, is remanded.

REASONS FOR REMAND

The Veteran had active service in the United States Marine Corps from December 1973 to February 1974.  The issue is on appeal from a December 2005 rating decision.

The Board of Veterans’ Appeals (Board) notes that in a June 2018 Memorandum, the United States Court of Appeals for Veterans Claims (CAVC) vacated the Board’s December 2016 decision which had denied entitlement to service connection for compensation under 38 U.S.C. § 1151 for osteomyelitis of the left ischium, claimed as due to VA treatment of a decubitus ulcer, and remanded the matter for adjudication.

In the June 2018 Memorandum, CAVC found the Board had erred when it did not address the reasonably raised theory of aggravation based on VA care.  Although VA medical staff opined that the Veteran likely had osteomyelitis when he was admitted to hospital and that given the course of antibiotics administered, an indium test would not be reliable, his treating physicians – who knew about the Veteran’s history – still used the unreliable indium test to determine an appropriate course of treatment.  The Veteran then needed an osteotomy to remove the infection of his bone.

On remand, an addendum opinion should be obtained from the September 2015 VA examiner who provided the last medical opinion regarding this claim.  Here, the examiner should provide an opinion on whether the use of an indium test to determine course of treatment proximately caused the osteotomy to remove the bone infection.

The matter is REMANDED for the following action:

1. An addendum medical opinion should be obtained from the September 2015 VA examiner, or another appropriate physician.  The examiner is asked to answer the following:

(a) Is it very likely, as likely as not, or unlikely that the use of and reliance on an indium test to curate a plan of treatment caused any additional disability, including the need for osteotomy? 

If the use and reliance of an indium test resulted in additional disability or disabilities, is it very likely, as likely as not, or unlikely:

(i) that the proximate cause of any additional disability was due to carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault on the part of VA in using and relying on the indium test? 

(ii) that the proximate cause of any disability was due to an event not reasonably foreseeable?  In making these determinations, the examiner must be mindful that the proximate cause of a Veteran’s additional disability need not be completely unforeseeable or unimaginable.  Instead, it must be one that a reasonable healthcare provider would not have considered to be an ordinary risk of the treatment provided.

The examiner must discuss the underlying medical rationale of these opinions, if necessary citing to specific evidence in the file in support of conclusions.   

2. Readjudicate the appeal.



 

L. M. BARNARD

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	J. Lee, Associate Counsel

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.