Citation Nr: 20051329 Decision Date: 08/03/20 Archive Date: 08/03/20 DOCKET NO. 19-35 351 DATE: August 3, 2020 REMANDED Compensation under the provisions of 38 U.S.C. § 1151 for additional disability to a left wrist condition. REASONS FOR REMAND The Veteran served on active duty from July 1961 to July 1963. The case is on appeal from a March 2017 rating decision. Compensation under the provisions of 38 U.S.C. § 1151 for additional disability to a left wrist condition. The Veteran is seeking compensation under 38 U.S.C. § 1151. He contends that he now has a physical deformity to his left wrist and suffers pain as a result of medical care rendered at a VA emergency room on June 3, 2015, following a motorcycle accident. See November 2019 Form 9. In this case, the Board finds remand is warranted to obtain a new independent medical opinion. A January 2017 VA opinion is of record. After reviewing all the Veteran’s medical records, the reviewer concluded that there is no objective evidence that care provided at the VA emergency room (ER) caused or aggravated the Veteran’s left wrist fracture. The reviewer stated medical records indicate the appropriate standard of care was rendered by ER staff in consultation with orthopedics. As such, the Veteran’s disability did not result from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. Further, any additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider. As to this opinion, the reviewer did not explicitly address whether the Veteran suffered any additional disability following the June 3, 2015 treatment or how treatment may have impacted prior neurological issues with his left wrist. The reviewer also provided that more recent medical records do not mention or identify any complaints or anatomical abnormality of the left wrist. However, medical records from August 2015 provide that the Veteran was frustrated with the quality of care for his fracture and that he again expressed concern for not having surgery in September 2015. More recently, in August 2017 provide the Veteran complains of sharp pain rated 9/10, which interferes with driving, motor movements, weight bearing, and other manual labor activities. As such, a new independent medical opinion should be obtained on remand under 38 U.S.C. § 5109. The matters are REMANDED for the following action: Forward the claims file to an appropriate medical professional in connection with the § 1151 claim, for an independent medical opinion under 38 U.S.C. § 5109. If the questions cannot be answered without a physical examination, then one should be conducted (or telehealth interview, review of the record, etc. if an in-person examination is not feasible). The examiner is asked to address each of the following: First, identify any additional disability resulting from medical treatment on or about June 3, 2015 by comparing the Veteran’s condition immediately before the treatment and afterwards. This includes any further treatment during the recovery period. The examiner should address whether there was any additional disability resulting from not having surgery on his fractured left wrist. Second, if additional disability is found, provide an opinion as to whether any such additional disability was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination, to include consideration of whether any disability was caused by negligent nursing care after the treatment. The examiner should include whether the Veteran presented as high risk for the potential wrist surgery and whether it should have been performed. Third, if additional disability is found, provide an opinion as to whether any such additional disability was an event not reasonably foreseeable. That is, was the event the type of risk that a reasonable health care provider would have disclosed in connection with informed consent procedures. Consideration should be given to the Veteran’s medical history of having a “dead nerve in his left forearm” causing decreased range of motion and strength prior to the left wrist fracture. Additionally, consideration should be given to the Veteran’s lay statements that after treatment, he was “far from his baseline with functionality prior to the fracture” and that the attending resident did not follow up with him after treatment. If the reviewing clinician cannot provide the requested opinion without resorting to speculation, it must be so stated, and he or she must provide the reasons why an opinion would require speculation. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Becton, 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.