Citation Nr: 21003114 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-37 304 DATE: January 19, 2021 REMANDED Compensation under the provisions of 38 U.S.C. § 1151 for additional disability from a January 19, 2006 abdominal surgery. Compensation under the provisions of 38 U.S.C. § 1151 for additional disability from abdominal surgeries or procedures on January 13, 2003, April 13, 2007, June 18, 2007, November 8, 2007, July 9, 2010, and October 3, 2012.   REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) from January 1979 to April 1979, and on active duty from September 1983 to October 1983, and September 1985 to October 1988. The case is on appeal from a September 2013 rating decision. In October 2018, the Veteran and his brother testified at a Board hearing. In January 2020, the Board remanded the claim for additional development. 1. Compensation under the provisions of 38 U.S.C. § 1151 for additional disability from a January 19, 2006 abdominal surgery. 2. Compensation under the provisions of 38 U.S.C. § 1151 for additional disability from abdominal procedures or surgeries on January 13, 2003, April 13, 2007, June 18, 2007, November 8, 2007, July 9, 2010, and October 3, 2012. The Veteran is seeking compensation under 38 U.S.C. § 1151. He contends he has psychological problems and an abdominal deformity as a result of the various abdominal surgeries he has undergone. The Veteran, who underwent a hernia repair that included placement of a mesh in July 2010, specifically asserts that the mesh placement should have occurred at the time of a January 19, 2006 or April 13, 2007 procedure, as that would have prevented the need for additional subsequent surgeries. See October 2013 notice of disagreement. He also asserts he should have not undergone a January13, 2003 surgery, as he is a high-risk patient. See August 2017 lay statement. In January 2020, the Veteran’s claim was remanded for an independent medical opinion under 38 U.S.C. § 5109 that addressed whether the Veteran experienced any additional disability following procedures or surgeries that took place on January 13, 2003, January 19, 2006, April13, 2007, June 18, 2007, November 8, 2007, July 9, 2010, and October 3, 2012. In April 2020 and September 2020, the RO obtained opinions from a VA clinician. As the Board's remand instructed the AOJ to obtain an independent medical opinion pursuant to 38 U.S.C. § 5109, the Board finds that there has not been substantial compliance with the January 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a Board remand confers on a claimant the right to compliance with the remand orders). Therefore, the claim is remanded for an independent medical opinion that addresses whether the Veteran experienced any additional disability as a result of treatment he received from VA. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. The matters are REMANDED for the following action: 1. 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. The examiner is asked to address each of the following: First, identify any additional disability resulting from procedures or surgeries on January 13, 2003, January 19, 2006, April13, 2007, June 18, 2007, November 8, 2007, July 9, 2010, and October 3, 2012 by comparing the Veteran’s condition immediately before the surgery and afterwards. This includes the treatment for the recovery period. The examiner should address whether there was any additional disability resulting from not placing a mesh at the time of the January 19, 2006, April 13, 2007, June 18, 2007, November 8, 2007 procedures. Then, determining whether there is a causal link between any additional disability and the surgery/treatment. Second, provide an opinion as to whether any 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 the hospital care, medical or surgical treatment, or examination, to include consideration of whether any disability was caused by negligent nursing care after the surgery. The examiner should include whether the Veteran presented as high risk for the January 13, 2003 surgery and whether the surgery should have been performed. Third, provide an opinion as to whether the identified 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. 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 E. Gray, 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.