Citation Nr: 20023077 Decision Date: 04/02/20 Archive Date: 04/02/20 DOCKET NO. 19-13 057 DATE: April 2, 2020 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for left shoulder/arm disability as a result of left superficial parotidectomy performed at VA in October 2011 is remanded. Entitlement to service connection for right ankle disorder, to include as secondary to service-connected bilateral foot disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1982 to February 1993. These issues were initially denied by the Agency of Original Jurisdiction (AOJ) in a September 2015 rating decision. Additional new and material evidence, primarily a statement from the Veteran and VA clinical records, was received within one year of the decision and, thus, the AOJ readjudicated the claim in a February 2016 rating decision. Again, additional medical and lay evidence was received within one year of that decision. As such, the AOJ again readjudicated the claim in a January 2017 rating decision, which the Veteran appealed to the Board. 38 C.F.R. § 3.156 (b). Thus, as these claims have been ongoing since the original claim for service connection, there is no need to determine whether new and material evidence has been received to reopen these claims. Further, in June 2018, the Veteran submitted a notice of disagreement (NOD) with respect to the issues of entitlement to service connection for narcolepsy/sleep disorder, obstructive sleep apnea and residual scar from benign parotid gland mass removal as well as a temporary total evaluation. The AOJ has not issued a statement to the case with respect to these matters. However, the electronic Veterans Appeals Control and Locator System (VACOLS) also noted receipt of the NOD as to this claim. As VACOLS indicates additional action is pending at the AOJ, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. As VACOLS reflects that the NOD has been recognized and that additional action is pending, Manlincon is not applicable at this time. The Board notes that the Veteran perfected an appeal as to the claim for entitlement to clothing allowance payment; however, on his January 2016 substantive appeal, he marked his desire for a Board hearing with respect to that issue. Thus, the Board will not address that issue herein as it has a pending Board hearing request. 1. Entitlement to compensation under 38 U.S.C. § 1151 for left shoulder disability as a result of parotidectomy performed at VA in October 2011 is remanded. Initially, the Board notes that the Veteran’s signed informed consent documents and the full surgical notes for the October 2011 VA surgery have not been associated with the record. Importantly, VA clinical records show that these documents are available in the VISTA Imaging system. As these records are relevant to this matter, a remand is necessary to obtain these documents. VA clinical records show that shortly after the surgery, the Veteran reported left shoulder pain with limited mobility and tingling. An opinion was obtained in August 2015. The examiner indicated that the Veteran did not have a left shoulder disability due to the surgery; but then indicated that he developed Parsonage-Turner Syndrome postoperatively due to positioning during surgery. The examiner found that the disability was not the result of carelessness, negligence or lack of skill or fault as the surgery required for the head to be turned to the right. However, the examiner did not specifically address whether the Veteran was positioned correctly during the surgery. The examiner then determined that it is less likely as not that the additional disability resulted from an event that could not have been reasonably foreseen by a reasonable health care provider. The examiner rationalized that the proper positioning and exposure of the left parotid gland is important for the parotidectomy and the Acute Brachial Neuropathy is a rare occurrence. However, this opinion and rationale appear to be contradictory by indicating that the disability is reasonably foreseeable, but then noting that it is a rare occurrence. The examiner also did not discuss whether any additional disability was a reasonably foreseeable outcome of the procedure based upon the specific facts and circumstances of this Veteran's case. See Schertz v. Shinseki, 26 Vet. App. 362, 368-69 (2013). Moreover, the examiner appears to indicate that the Veteran’s pain had resolved; however, subsequent, VA clinical records still document symptoms. In light of the above, the Board finds that an examination with opinion is necessary. The Board finds that an examination as opposed to an opinion is necessary to clearly determine whether the Veteran has an additional left shoulder disability and to obtain a complete medical history from the Veteran. 2. Entitlement to service connection for right ankle disorder, to include as secondary to service-connected bilateral foot disabilities, is remanded. A VA opinion was done in February 2016. The examiner found that the Veteran’s right ankle disorder is not incurred in or caused by the right ankle tendinitis in service. The examiner rationalized that the Veteran sustained a sprain of the right ankle while in service. He was diagnosed with right ankle tendinitis in January 1989. There is no evidence of continuity of care for the ankle tendinitis condition after leaving active duty service in 1993. The Veteran sustained a fracture of the right ankle in 2012 requiring surgery. The current right ankle condition cannot be linked with the in-service tendinitis condition. Continuity of care related to in-service symptoms is not established. The ankle tendinitis condition will not cause the Veteran's foot to get caught while exiting a shed leading to fall and fracture of the right ankle. The examiner concluded that nexus to service is not established. However, the examiner failed to consider the Veteran’s lay statements of pertinent symptomatology. Moreover, VA clinical records show that the Veteran reported right ankle symptoms in 1999, many years before the 2012 injury. Thus, the examination is inadequate as the examiner did not appear to consider all of the relevant evidence or, in light of such, provide sufficient rationale for the opinion. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the Board finds that another VA examination with etiological opinion is necessary. Moreover, VA medical records appear to indicate that the Veteran’s right ankle symptoms are associated with this service-connected bilateral foot disabilities bilateral flatfoot and residuals of cold injury of both feet. As such, an opinion is also necessary as to whether the Veteran has a right ankle disorder that is proximately due to or aggravated by his service-connected bilateral foot disabilities. The matters are REMANDED for the following action: 1. Obtain any signed informed consent documents and the full surgical report for the October 2011 VA surgery, including searching the Vista Imaging System. If the search for such records has negative results, the claims file should be properly documented as to the unavailability of those records. 2. Schedule the Veteran for a VA examination with opinion to address the Veteran’s section 1151 claim for left shoulder disability as a result of surgery performed by VA in October 2011. The examiner should address the following questions: (a) Does the Veteran have any additional left shoulder/arm disability, to include any neurological deficits, following the surgery performed by VA in October 2011? (b) If the Veteran has an additional left shoulder/arm disability, was the additional disability caused by or made worse by the October 2011 VA surgery? (c) If the Veteran has an additional left shoulder/arm disability that was caused by or made worse by the October 2011 VA surgery, did this additional disability result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA? (d) If the Veteran has additional left shoulder/arm disability that was caused by or made worse by the October 2011 VA surgery, notwithstanding any informed consent documents of record, was any additional disability a reasonably foreseeable outcome of the October 2011 VA surgery based upon the specific facts and circumstances of this Veteran’s case? In providing this opinion, the examiner should address whether a “reasonable health care provider” would have considered the Veteran’s additional left shoulder/arm disability to be an ordinary risk of the surgical treatment provided and would have disclosed such a risk in connection with the treatment, regardless of the risks the treating physician actually foresaw and disclosed in any informed consent form. The examiner must address the statement made by the prior August 2015 examiner that acute brachial neuropathy was a rare occurrence. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right ankle disorder. The examiner must opine whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) related to an in-service injury, event, or disease, including the 1989 injury. The examiner must also opine whether it is at least as likely as not (1) proximately due to service-connected bilateral foot disabilities, or (2) aggravated, including incremental or transient, by service-connected bilateral foot disabilities. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.N. Moats 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.