Citation Nr: 20019620 Decision Date: 03/16/20 Archive Date: 03/16/20 DOCKET NO. 18-16 099 DATE: March 16, 2020 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for an additional disability, claimed as a chronic disorder of the left ankle (loss of use), as a result of VA medical treatment is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for an additional disability, claimed as pulmonary hypertension, as a result of VA medical treatment is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for an additional disability, claimed as pulmonary embolism (PE), as a result of VA medical treatment is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for an additional disability, claimed as deep vein thrombosis (DVT) with post-thrombotic syndrome and chronic venous insufficiency of the left lower extremity, as a result of VA medical treatment is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for an additional disability, claimed as post-thrombotic syndrome and chronic venous insufficiency of the right lower extremity, as a result of VA medical treatment is remanded. Entitlement to special monthly compensation based on loss of use of the left ankle/foot is remanded. REASONS FOR REMAND The Veteran had active service from March 1973 to July 1974. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in January 2020 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. All issues on appeal are remanded. The Veteran underwent surgery at a VA hospital in November 2013 for a left ankle fracture. An orthopedic immediate post-operative note indicates that DVT prophylaxis was not required, as the Veteran was an outpatient. However, it was specifically noted at the top of the post-operative note that there were addenda. The addendum states that aspirin and early mobilization will be used as prophylaxis. The Veteran was provided with crutches and discharged the day following surgery. Discharge instructions do not mention aspirin. Several weeks later, the Veteran sought treatment at the emergency room, at which time she was assessed with an acute DVT of the left lower extremity and extensive, bilateral pulmonary emboli with near complete occlusion, in December 2013. A December 2013 VA treatment note indicates the Veteran had a “tib fib” fracture, resulting in a DVT, resulting in a PE, resulting in post-thrombotic syndrome with leg swelling. A physical therapy note from January 2014 noted that the Veteran was using crutches that were too tall for her. A September 2014 Disability Benefits Questionnaire indicates the Veteran has diagnoses of DVT of the lower extremity, peripheral venous insufficiency, post-phlebitic syndrome with stasis and long-term use of anticoagulant. A VA medical opinion was obtained in February 2015. The examiner opined that the Veteran’s residual conditions related to her PE are at least as likely as not caused by a result of VA treatment at issue; however, it is less likely than not that the conditions were caused by carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. The examiner explained that when symptoms occurred, the Veteran was adequately diagnosed and treated in a timely manner, as timely as was possible as initially the Veteran did not feel she was having clot symptoms and that her symptoms were due to asthma. The examiner concluded by stating that foot or ankle surgeries do not fall within the recommendation for prophylactic treatment for hypercoagulation therapy prior to/during/post-operatively. An October 2017 private treatment notes indicates the Veteran had a history of provoked DVT and PE. It was noted that there was a question at the VA of which came first. The physician stated that the Veteran’s extensive DVT led to her PE. The PE was not a de novo event and the DVT led to the PE. The Veteran submitted numerous articles and studies regarding DVT’s, PE’s and prophylactic treatment recommendations. She asserts VA did not meet the standard of care following her surgery. In particular, she asserts the surgeons instructions regarding aspirin and early mobilization were not followed by the hospital and she was not given any instructions regarding aspirin, she asserts they provided incorrectly sized crutches, did not ensure that she had the ability to appropriately care for herself at home because the hospital was aware that she was the caretaker for her adult son, did not provide her with compression stockings in a timely manner and various other issues that she feels did not meet the standard of care. Given the complex medical nature of the medical questions at issue and controversy, the Board has determined that in accordance with 38 U.S.C. § 5109, a remand is required for VA to request an advisory medical opinion from an independent medical expert. The matters are REMANDED for the following action: 1. Notify the Veteran and her representative that VA is requesting an advisory medical opinion pursuant to 38 U.S.C. § 5109 regarding the issues on appeal. 2. Then, pursuant to 38 U.S.C. § 5109, forward the Veteran’s claims file to a non-VA, independent medical expert in the field of orthopedic surgery. The entire claims file, including a copy of this Remand, must be made available to and must be reviewed by the expert. The expert should address the following: a) Does the Veteran suffer from additional disabilities caused by or made worse by VA surgery to the left ankle and subsequent treatment performed in November 2013 and December 2013, claimed as: i) loss of use of the left foot; ii) pulmonary hypertension; iii) pulmonary embolism; iv) DVT with post-thrombotic syndrome and chronic venous insufficiency of the left lower extremity; and, v) post-thrombotic syndrome and chronic venous insufficiency of the right lower extremity. To determine whether the Veteran has additional disability(ies), the physician should compare the Veteran’s condition before the procedures to the Veteran’s condition after the procedures, including her report of symptoms and her treatment records. b) The reviewing physician is requested to opine whether it is (a) less likely than not, (b) as likely as not, or (c) more likely as not: i) that the Veteran’s loss of use of the left ankle/foot is a result of carelessness, negligence, lack of skill, error in judgement, or similar fault as a result of her care at the VA or was an event that was not reasonably foreseeable or anticipated by a Health Care Provider; ii) that the Veteran’s pulmonary hypertension is a result of carelessness, negligence, lack of skill, error in judgement, or similar fault as a result of her care at the VA or was an event that was not reasonably foreseeable or anticipated by a Health Care Provider; iii) that the Veteran’s pulmonary embolism is a result of carelessness, negligence, lack of skill, error in judgement, or similar fault as a result of her care at the VA or was an event that was not reasonably foreseeable or anticipated by a Health Care Provider; iv) that the Veteran’s DVT with post-thrombotic syndrome and chronic venous insufficiency of the left lower extremity are a result of carelessness, negligence, lack of skill, error in judgement, or similar fault as a result of her care at the VA or was an event that was not reasonably foreseeable or anticipated by a Health Care Provider; v) that the Veteran’s post-thrombotic syndrome and chronic venous insufficiency of the right lower extremity are a result of carelessness, negligence, lack of skill, error in judgement, or similar fault as a result of her care at the VA or was an event that was not reasonably foreseeable or anticipated by a Health Care Provider. c) The physician is asked to specifically consider and discuss i) the November 2013 post-operative note that indicates DVT prophylaxis was not required, ii) the November 2013 addendum which states that aspirin and early mobilization will be used as prophylaxis, iii) the October 2017 private opinion that the Veteran’s DVT and PE were provoked by the surgery performed by VA, and iv) the February 2015 VA opinion that foot or ankle surgeries do not fall within the recommendation for prophylactic treatment for hypercoagulation therapy prior to/during/post-operatively. d) The examiner should also consider and discuss the Veteran’s assertions that i) aspirin prophylaxis was prescribed but not implemented, ii) she was not given instructions regarding mobilization, iii) that she complained of excruciating pain to the left thigh in December 8, 2013 but was not properly examined, iv) she was given incorrectly sized crutches, v) she was not placed in graduated compression stockings until approximately April 2014, vi) that she was discharged too early after her diagnosis of a PE, and, vii) overall, VA did not meet the standard of care. A detailed explanation (rationale) is requested for all opinions provided. (By law, VA is not permitted to rely on any conclusion that is not supported by a thorough explanation.) Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, 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.