Citation Nr: 21000593 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 19-35 351 DATE: January 5, 2021 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. The claim was last before the Board in August 2020. At that time, the Board remanded the claim for further development. 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. The Board finds that there was not substantial compliance with the Board’s April 2019 remand directives where the Board directed the RO to obtain a VA medical opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The record includes a January 2017 VA opinion. At that time, the reviewer reported there was 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. However, the reviewer did not explicitly address whether the Veteran suffered any additional disability following the June 3, 2015 treatment or how that treatment may have impacted prior neurological issues with his left wrist. Additionally, the reviewer did not address medical records from August 2015 providing the Veteran was frustrated with the quality of care for his fracture and that he expressed concern for not having surgery in September 2015. Also, the reviewer did not address the Veteran’s complaints in August 2017 of sharp pain rated 9/10, interfering with driving, motor movements, weight bearing, and other manual labor activities. As such, the Board remanded the claim for an additional medical opinion. Upon the Board’s remand, the Veteran was provided an October 2020 VA examination and an addendum medical opinion. At that time, the examiner reported that accepted appropriate protocols were followed and that the standard of care was met in this case. Further, it is less as likely as not that the claimed condition was caused by or became worse as a result of the VA treatment, additional disability from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel or additional disability resulted from an event that could not have been reasonably foreseen by a reasonable healthcare provider, and/or failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. The examiner also provided a “closed reduction does not necessarily compromise function to an apparent cosmetic result” and that there was no identified problem on post reduction care documented in OT notes in 2015. Additionally, the examiner stated that 2016, 2017, and 2018 showed improved and acceptable position of radius fracture and that the current function appears to be natural progression acceptable for the nature and severity of a pre-existing condition at the wrist and impact from MVA and age. The October 2020 VA examiner did not address whether there was an additional disability resulting from not having surgery on the Veteran’s fractured wrist. Additionally, the examiner did not provide an explicit opinion regarding whether there was carelessness, negligence, lack of proper skill, error in judgment or fault on VA’s part in furnishing hospital care, medical or surgical treatment. Further, while noting more recent medical records show improvement, the examiner continued to disregard the Veteran’s August 2015 and August 2017 complaints. As these were bases for the Board’s last remand, the Board finds there was not substantial compliance with the August 2020 remand, leaving the October 2020 VA opinion wholly inadequate. Accordingly, a new opinion is warranted under 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.