Citation Nr: 19167652 Decision Date: 09/03/19 Archive Date: 09/03/19 DOCKET NO. 14-38 667A DATE: September 3, 2019 REMANDED The claim of entitlement to compensation under 38 U.S.C. § 1151 for residuals of stroke is remanded. REASONS FOR REMAND The Veteran had active duty service from October 1966 to December 1969. He died in July 2016. The appellant is his surviving spouse and has been substituted as the appellant in this appeal. This appeal to the Board of Veterans’ Appeals (Board) arose from an April 2010 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, denied entitlement to compensation under the provision of 38 U.S.C. § 1151 for stroke residuals. The Veteran disagreed with that decision and this appeal ensued. In November 2018, the appellant testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record. Upon review of the record, the Board finds it necessary to remand the claim on appeal for further evidentiary development. As to the issue of entitlement to compensation under 38 U.S.C. § 1151, the law provides that compensation shall be awarded for a “qualifying additional disability” in the same manner as if such additional disability was service connected if the disability was: (a)... not the result of the veteran’s willful misconduct and-- (1)... was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary... and the proximate cause of the disability... was-- (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of [VA] in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable... 38 U.S.C. § 1151. Thus, to obtain benefits under 38 U.S.C. § 1151(a), a claimant must show: (1) a “qualifying additional disability,” (2) directly caused by the treatment furnished by VA, and (3) a proximate cause that is either a fault on the part of VA or an event not reasonably foreseeable. Id.; 38 C.F.R. § 3.361(d)(1). To establish that the proximate cause of a qualifying additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, the claimant must show either (1) that VA failed to exercise the degree of care that would be expected of a reasonable healthcare provider; or (2) that VA furnished the care, treatment, or examination without the veteran’s informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of an additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 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 the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). In the instant case, the Veteran has asserted his belief that VA’s delay in treating him after he was suspected to have a possible total occlusion of the left internal carotid artery led to a mild stroke resulting in an inability to raise the right arm. A review of the record shows that in May 2008, the Veteran presented to the VA outpatient clinic in Fort Myers, Florida, with complaints of a swollen and weak right hand. The record contains treatment notes signed by Dr. F. dated in May 208. A magnetic resonance imaging (MRI) scan of the brain was thereafter done in October 2008 to address the complaints of weakness and loss of fine motor movements of the right arm and hand. Results of the MRI were interpreted to reveal a remote infarct in the distribution of the right middle cerebral artery. No acute event or enhancing lesions were seen. In January 2009, the Veteran was seen for a vascular surgery consultation. It was indicated that a duplex scan was reviewed, findings of which were consistent with a bilateral internal carotid artery (ICA) occlusion. To confirm, a computed tomography (CT) angiogram was conducted, but not until March 2009. Results of the CT angiogram showed a right ICA occlusion, a left ICA string sign (long segment of high-grade stenosis), a left vertebral ostial stenosis, and a right vertebral widely patent. Based on the results of the CT angiogram, it was recommended that the Veteran remain in the hospital at that time until a consultation with neurology could take place for any further reevaluation and treatment. A neurology consultation was conducted, and it was felt as though surgical intervention was not possible at that time. He was then discharged with a diagnosis of severe intracranial carotid artery disease and a fee-based consultation with a neurosurgical specialist at Tampa General Hospital was recommended, as the carotid artery findings did not seem amenable to the standard open carotid endarterectomy that is performed at VA. Notably, the fee-based consultation request form, dated on March 27, 2009, listed the urgency of the request to be “within 24 hours.” Notes then indicate that on March 30, 2009, the Veteran was approved for initial consultation at the University of South Florida. The Veteran was, however, not seen for another cerebral angiogram on April 20, 2009, which angiogram was conducted at Tampa General Hospital, an affiliate of University of South Florida. It is this delay, from the time that a fee-based consultation was requested, until the Veteran was seen in April 2009, that he asserts caused further blockage of his artery, thus preventing any further improvement with regard to his right arm. In March 2010, the agency of original jurisdiction (AOJ) obtained a medical opinion in connection with the Veteran’s claim. Upon review of the record, the clinician opined that it was not likely that there was carelessness, negligence, lack of proper skill, error in judgement, or similar fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. The Board notes that when the VA Secretary provides the claimant with a VA medical examination or opinion, he must ensure that the examination or opinion provided is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). VA medical examination or opinion is adequate if it is “thorough and contemporaneous,” considers the veteran’s prior medical examinations and treatment, and “describes the disability . . . in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one.’” Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Indeed, a “medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The medical opinion must also “support its conclusions with an analysis that the Board can consider and weigh against contrary opinions.” Stefl, 21 Vet. App. at 124; see Nieves-Rodriguez, 22 Vet. App. at 304 (“most of the probative value of a medical opinion comes from its reasoning”). Furthermore, the United States Court of Appeals for Veterans Claims (Court) has held that a VA examiner cannot use speculation “as a substitute for the full consideration of all pertinent and available medical facts to which a claimant is entitled.” Jones v. Shinseki, 23 Vet. App. 382 (2010). The Court prescribed that such a standard requires that the examiner’s assessment be made after all due diligence has been exercised in seeking relevant medical information that may have bearing on the requested opinion. Id. Although a bald statement by the examiner that it would be speculative to render an opinion as to etiology or diagnosis is fraught with ambiguity, the Board may rely on an examiner’s conclusion that an opinion would be speculative if such an opinion is supported by an explanation of the basis for such an opinion or is otherwise apparent in the Board’s review of the evidence. Id. VA must also ensure that it is clear, from either the examiner’s statements or the Board decision, that the examiner has considered “all procurable and assembled data” by obtaining all tests and records that might reasonably illuminate the medical analysis. Id. (quoting Daves v. Nicholson, 21 Vet. App. 246 (2007)). Thus, the examiner’s use of the phrase “without resort to mere speculation” should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner. Finally, the examiner should clearly identify precisely which facts cannot be determined. In the instant case, the Board cannot conclude the opinion report obtained in March 2010 is adequate to rely upon. At the outset, the Board notes that the clinician does not address the first question of whether or not the Veteran has any “qualifying additional disability.” Here, the Veteran has asserted that the delay in treatment caused him to suffer a stroke due resulting in an inability to lift his right arm and/or preventing improvement with regard to his right arm. This was not addressed by the VA clinician. The Veteran has also asserted that the delay in treatment resulted in a 100 percent blockage of the left ICA, as opposed to the 97 percent blockage that he was originally noted to have. Regarding this contention, the VA clinician stated that he could not resolve that question without resort to mere speculation. Further, the VA clinician stated that there was no specific note of treatment by Dr. F. in May 2008. As the record does is fact contain May 2008 treatment records from Dr. F., the Board cannot conclude that the VA clinician considered all relevant evidence prior to forming his opinion. Further, the clinician gave no reasoning for his inability to provide an opinion without resorting to speculation regarding whether VA delay in treatment resulted in an increased blockage of the Veteran’s left ICA. Given the inadequacies in the March 2010 medical opinion, the Board finds that the matter must be remanded to obtain an opinion that provides a comprehensive analysis of the Veteran’s claim. See 38 U.S.C.A§ 5103A (d); Barr, supra; 38 C.F.R. § 3.159. While this matter is on remand, to ensure that all due process requirements are met, and that the record is complete, in addition to obtaining the VA records noted above, the AOJ should give the appellant another opportunity to provide additional information and/or evidence pertinent to the claim on appeal (explaining that he has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1). But see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claim on appeal The matter is hereby REMANDED for the following action: 1. Furnish to the appellant and her representative a letter requesting that the appellant provide additional information and, if necessary, authorization, to obtain any additional evidence pertinent to the remaining claim on appeal that is not currently of record, to include any, pertinent private (non-VA) medical records. Clearly explain to the appellant that she has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the appellant responds, assist her in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the appellant of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from any contacted entity have been associated with the claims file, or, a reasonable time period for the Veteran’s response has expired, arrange to obtain a medical opinion by an appropriate VA physician based on claims file review. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the opinion should reflect consideration of the Veteran’s documented medical history and assertions. The physician should then provide an opinion as to whether the Veteran suffered additional disability as the result of any delay in treatment beginning in May 2008, specifically indicating whether, at any point from May 2008 forward, the Veteran suffered a stroke and, if so, whether such stroke resulted in additional disability. In doing so, the physician should address specifically whether any delay in treatment, to include any delay from January 2009 to March 2009, and/or between the March 2009 fee-based consultation request and the April 2009 fee-based treatment at Tampa General Hospital, prevented further improvement of any previously indicated right arm problems. The physician must also address whether any delay in treatment caused a further blockage of the Veteran’s left ICA. If it is determined that the Veteran does not have additional disability(ies) as the result of any delay in treatment, the clinician should so clearly so state and provide specific reasons for his or her determination in this regard. Again, in doing so, the physician must specifically address the Veteran’s claimed stroke and residuals related to the right arm. If it is determined that additional disability(ies)y has/have resulted, for each identified disability, the examiner should opine whether such disability: (a) was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA; OR, (b) was proximately caused by an event not reasonably foreseeable, and, if so whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with informed consent procedures. The physician must provide complete, clearly stated rationale for the conclusions reached--to include, as appropriate, citation to specific evidence of record and/or medical authority. In making any determination as to proximate cause, the physician must consider and discussion the Veteran’s lay assertions. If the physician cannot provide an opinion as to any question without resort to speculation, the physician should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the cause of additional disability in this case or whether additional testing or information could be obtained that would lead to a conclusive opinion. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claim on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Neilson, 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.