Citation Nr: 20031753 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 12-15 285 DATE: May 6, 2020 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for residuals from right ankle surgery due to VA medical treatment in 2009 and 2010 is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1972 through November 1972 and August 1973 through August 1975. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had requested the opportunity to appear before the Board and provide evidence with respect to these matters. He failed to appear at the scheduled October 2014 hearing. As he has provided neither good cause for failing to appear, nor requested a rescheduling of the hearing, the request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d). In August 2016 and February 2019, the Board remanded these matters to the Agency of Original Jurisdiction (AOJ) for additional development. The appeal has since returned to the Board. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that the AOJ did not substantially comply with the remand directives. In August 2010, the Veteran was afforded a VA examination for his right ankle disability. The examiner explained that he did not have access to the technology required to view digital imaging with lossless compression on a diagnostic quality radiographic monitor to determine if the internal fixation devices used were placed in such a way that the fixation device prevented compression of the fracture site. The examiner explained that if the threads of one or both of the screws used for fixation were within and not beyond the fracture, this could have held the fracture distracted and could have resulted in delay/non-union of the fracture. Screw threads within the fracture site, although unintentional, could be interpreted as a departure from accepted levels of medical care or the performance of professional duties expected of a reasonable healthcare provider. Further, if screw threads were within the fracture site, delayed, non-union of the fracture could be perceived as a foreseeable event. As such, the Board remanded this matter for a VA examination in August 2016 and February 2019. These remands specified that the examination was to be conducted at a facility with a diagnostic quality radiographic monitor, if possible, by an orthopedic surgeon with expertise in performing ankle internal fixation surgery. The examiner was to opine as to whether or not the Veteran developed an additional disability as a result of his December 2009 right ankle internal fixation surgery. Unfortunately, the record does not show that the requested diagnostic imaging was obtained by the September 2017 and December 2019 VA examiners before formulating an opinion. Additionally, there was no discussion regarding why the requested imaging was not obtained. As the July 2010 VA examiner has informed that such testing could inform whether the Veteran’s residuals from his right ankle surgery is the result of a departure of acceptable medical care and whether it was a foreseeable event, further development is necessary. The matters are REMANDED for the following action: Obtain an opinion from an appropriate medical professional for the § 1151 claim following VA surgical treatment of the Veteran’s right ankle. The claims file should be made available to and be reviewed by the examiner. An explanation for all opinions expressed must be provided. All appropriate tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner must have access to a diagnostic quality radiographic monitor. If access to a diagnostic quality radiographic monitor is not possible, that fact must be noted in the record. First, the examiner must state whether the Veteran has an additional disability or disabilities as a result of VA surgical/medical intervention in the right ankle in December 2009 and March 2010. Second, if so, the examiner must state whether the additional disabilities and any residuals thereof, was at least as likely as not (50 percent or better probability): a. 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 a reasonably foreseeable outcome of the right ankle surgery based upon the specific facts and circumstances of this Veteran’s case, notwithstanding any informed consent documents. 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 surgical/medical treatment for the right ankle. In determining whether an event was reasonably foreseeable, the examiner should 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 addressing the above, the examiner should state if the internal fixation devices used were placed in such a way that the fixation device prevented compression of the fracture site. The examiner should also discuss whether screw threads exist within the fracture site. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.B. Mmeje, 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.