Citation Nr: 21000490 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 12-15 285 DATE: January 5, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for residuals from right ankle surgery due medical treatment at James A. Haley Veterans’ Hospital in December 2009 and March 2010 is remanded. REASONS FOR REMAND The Veteran served on active duty for training in the United States Marine Corps from April 1972 until his honorable discharge in November 1972. The Veteran served on active duty in the United States Marine Corps from August 1973 until his honorable discharge in August 1975. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In his May 2012 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge. A hearing was scheduled in October 2014; however, the Veteran failed to appear. 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cause for failing to appear, nor requested a rescheduling of the hearing, the request for a Board hearing is deemed withdrawn.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. This case was previously before the Board in August 2016, February 2018 and May 2020. In May 2020, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) to obtain a VA examination and medical opinion. The case has returned to the Board for further consideration. Although further delay is regrettable, the Board finds a remand is necessary to ensure due process is followed and there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 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). Entitlement to compensation under 38 U.S.C. § 1151 for residuals from right ankle surgery is remanded. The Veteran is seeking compensation under 38 U.S.C. § 1151. He contends that because his original December 2009 right ankle surgery was not performed correctly, he was required to undergo a second right ankle surgery in March 2010. The Veteran stated, as a result of the second right ankle surgery he has a plate in his foot, and he is unable to ambulate properly. See March 2010 Correspondence. For background purposes, on December 1, 2009, the Veteran sustained a trimalleolar fracture to his right ankle; he was initially treated at Winter Haven Hospital. The Veteran presented for treatment of his right ankle at James A. Haley Veterans’ Hospital (JAH VAH) on December 9, 2009; he was admitted for ambulatory surgery. Review of a December 10, 2009 operation report confirms a preoperative and postoperative diagnosis of right bimalleolar ankle fracture. He underwent open reduction and internal fixation of right fibular fracture and percutaneous fixation of medial malleolar fracture right ankle. In March 2010, the Veteran presented to JAH VAH with continued pain at fracture sites and continued swelling. X-rays of right ankle showed medial malleolus and fibular fractures stabilized with metal plates and screws; the examiner noted some concern about suboptimal healing on these early views. Dr. E.E. assessed non-healing fracture right ankle. Dr. E.E. advised the Veteran that medial malleolus was not healing as one of the screws had started to back out and threads were in the fracture site. Dr. E.E. advised that the fracture would need to be re-fixated and the Veteran was scheduled for surgery. On March 15, 2010, the Veteran was admitted to JAH VAH for additional right ankle surgery. Review of a March 18, 2010 operation report confirms a preoperative and postoperative diagnosis of nonunion of right medial malleolar fracture. He underwent revisional open reduction and internal fixation of the right medial malleolar fracture. Under VA laws and regulations, when a Veteran suffers from additional disability or death as a result of training, hospital care, medical or surgical treatment, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such disability or death was service-connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. The evidence must show that the proximate cause of the additional disability is due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care or was an event not reasonably foreseeable. 38 U.S.C. § 1151. The United States Court of Appeals for Veterans Claims (Court) has clarified that the standard is not actual foreseeability or possible foreseeability, but that the test is driven wholly by how a “reasonable health care provider” would behave if asked to perform a certain procedure on a Veteran with the same characteristics as the Veteran in a given case. See Schertz v. Shinseki, 26 Vet. App. 362 (2013). In determining that additional disability exists, the Veteran’s physical condition immediately before the beginning of hospital care, medical or surgical treatment, examination, training and rehabilitation services upon which the claim is based is compared to the Veteran’s condition after such care, treatment, examination, services, or program has stopped. 38 C.F.R. § 3.361(b). A claim based on additional disability due to medical treatment must meet the causation requirement. 38 C.F.R. § 3.361(c). To establish causation, the evidence must show that VA’s medical treatment resulted in additional disability. Merely showing that a Veteran received treatment and that the Veteran has an additional disability does not establish cause. The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. In addition to causation, it must also be shown that (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) that VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran’s or, in appropriate, cases, his or her representative’s informed consent. 38 C.F.R. § 3.361(d)(1). Determinations of whether there was informed consent involve consideration of whether the health care provider substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of the case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1). The Veteran was initially afforded a VA examination in June 2010. The examiner stated the records and radiographs available did not allow for a determination of a right ankle impairment. The examiner provided the following remarks, “[t]his reviewer does 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 itself prevent compression of the fracture site requires reviewing of the radiographs with diagnostic quality monitor with lossless compression of the digital images. Even then it may not be possible with absolute certainty to declare that screw threads were in the fracture site. Tomography can often be required for such determinations.” In its most recent May 2020 remand, the Board directed the AOJ obtain an examination and medical opinion from an appropriate medical professional for the 38 U.S.C. § 1151 claim following VA surgical treatment of the Veteran’s right ankle. The remand specified that the examiner must have access to a diagnostic quality radiographic monitor and if such access is not possible, that fact must be noted in the record. In offering a medical opinion, the examiner was directed to state if the internal fixation devices used were placed in such a way that the fixation device prevent compression of the fracture site. Additionally, the examiner was directed to discuss whether screw threads exist within the fracture site. An ankle conditions examination was performed in August 2020. The examiner diagnosed bimalleolar ankle fracture, status-post open reduction and internal fixation. The examiner stated, “I cannot comment on whether the internal fixation devices prevented the compression of the fracture site as this is beyond my training and expertise.” The examiner explained, “[t]he screw threads existed in the facture site as noted on the post op visit x-ray mentioned by podiatry. Note that the post op x-ray of 1/25/2010 noted the fibular or lateral hardware was intact, but the medial fracture had one screw not fully into the cortex of the bone, that is, it had dislodged.” The Board cannot make a fully informed decision on the issue of entitlement to 38 U.S.C. § 1151 compensation for right ankle disability because the medical opinion is inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). First, the examiner, while a physician, is an internist and there is no evidence that he has any expertise in performing ankle internal fixation surgery. Most significantly, the examiner stated he was unable to comment whether the internal fixation devices prevent the compression of the fracture site as this is “beyond my training and experience.” Furthermore, there is no evidence that the examiner had access to, or used, a diagnostic quality radiographic monitor. Accordingly, to ensure substantial compliance with the directives of the May 2020 remand, a new VA examination and medical opinion should be obtained for the claimed disability, which includes an adequate supporting rationale. See Stegall, 11 Vet. App. 268. The matters are REMANDED for the following action: 1. Schedule the Veteran for VA examination for his 38 U.S.C. § 1151 claim with a qualified orthopedic surgeon with expertise in performing ankle internal fixation surgery, or similarly qualified medical specialist, to render a medical opinion. The entire claims file, including a copy of this REMAND, must be made available to and must be reviewed by the medical specialist. If an orthopedic surgeon with expertise in performing ankle internal fixation surgery is not available that fact must be noted in the claims file. Furthermore, if an orthopedic surgeon with expertise in performing ankle internal fixation surgery is not available, the examiner must state why the opinion provided is sufficient. 2. 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. 3. The examiner must have access to the technology required to view digital imagining with lossless compression on a diagnostic quality radiographic monitor. If access to this technology is not available, that fact must be noted in the record. If access to this technology is not available, state why the medical opinion may still be rendered. The examiner’s attention is drawn to the June 2010 VA examination report. The examiner stated, “[t]his reviewer does not have access to the technology required to view digital imaging with lossless compression on a diagnostic quality radiographic monitor.” 4. The examiner is asked to address each of the following: (a.) Whether based upon the evidence of record and sound medical principles reasonable diligence and preparation including any diagnostic tests or examinations typically performed prior to such right ankle surgery performed in December 2009 and/or March 2010, as such of a physician/surgeon exercising the degree of skill and care ordinarily required of the medical profession? (b.) Whether based upon the evidence of record and sound medical principles the right ankle surgery performed in December 2009 and/or March 2010 were performed exercising the degree of skill and care ordinarily required of the medical profession? (c.) Whether based upon the evidence of record and sound medical principles the Veteran provided proper informed consent after being provided information that describes the procedure and risks involved to the degree ordinarily required of the medical profession for the VA to perform right ankle surgery in December 2009 and/or March 2010? (d.) Whether based upon the evidence of record and sound medical principles there was an additional disability or worsening/aggravation of existing right ankle symptoms following the right ankle surgery in December 2009 and/or March 2010? (e.) Whether based upon the evidence of record and sound medical principles that an additional disability or worsening symptoms of the Veteran’s right ankle following the right ankle surgery in December 2009 and/or March 2010 was proximately caused by either (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? Proximate cause is shown if the additional disability is the result of VA’s failure to exercise the degree of care that would be expected by a reasonable health care provider. However, proximate cause is not shown if the additional disability is due to an event not reasonably foreseeable, i.e., an event that a reasonable health care provider would not have seen. Such event need not be unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the right ankle surgery. 5. 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’s attention is drawn to the June 2010 VA examination report. The examiner stated, “[i]f the threads of one or both of the screws used for fixation of the medial malleolus fracture were within and not beyond the fracture, this circumstance could have held the fracture distracted and could have caused fracture delayed/non-union and the need for reoperation. Screw threads within the facture site, although unintentional, could be interpreted as a departure from accepted level of medical care or the performance of professional duties expected of a reasonable health care provider. If screw threads were within the fracture site, delayed/non-union of the facture could be perceived as a foreseeable event.” 6. The examiner should explain his or her answers by citing to supporting clinical data and/or medical literature, as deemed appropriate. 7. A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without restoring to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 8. To help avoid future remand, the AOJ must ensure that all requested actions have been accomplished in compliance with this REMAND. If any action is not undertaken, or is taken to a deficient manner, appropriate corrective action should be undertaken prior to returning the case to the Board. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Grace Johnk, 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.