Citation Nr: 21061484 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-38 696 DATE: October 4, 2021 REMAND The issue of compensation under 38 U.S.C. § 1151 for a residuals of a left ankle injury as a result of treatment at a Department of Veterans Affairs medical facility between November 2007 and December 2008 is remanded. REASONS FOR REMAND The Veteran had active service from March 1976 to November 1977. In March 2021, the Veteran testified at a Videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. Entitlement to compensation under 38 U.S.C. § 1151 The Veteran essentially contends that VA's failure to conduct MRI testing after his continued complaints of left ankle pain caused or worsened his disability, and the present record is insufficient to resolve this issue. The case was remanded in April 2021 for an addendum opinion. The Board must again remand the claim as detailed below. 1. Advise the Veteran that he may submit any further evidence and argument in support of his claim. Provide any appropriate assistance to the Veteran in obtaining any existing evidence. 2. After the Veteran responds or after a reasonable amount, submit the file to a PHYSICIAN QUALIFIED IN ORTHOPEDIC MEDICINE. The Veteran contends that VA's asserted failure to provide him with MRI testing until approximately one year after an injury to his left ankle caused or worsened his current disability. The examiner is requested to provide a fully detailed, factually-based response to the following two questions: a. Was the delay between the Veteran's initial injury in November 2007 to September 2008 evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part? In other words, given the Veteran's reports of continued ankle pain, did VA fail to exercise the degree of care expected by a reasonable treatment provider in not providing MRI testing until approximately a year after the Veteran's fall? b. If the response to the above-question is "yes," was the delay the cause of the Veteran's additional left ankle disability? The examiner is advised: *Assume the Veteran is credible in his reports of telling his VA physician of his continued left ankle pain. *In determining whether additional disability exists, the Veteran's physical condition immediately prior to the beginning of the hospital care, medical or surgical treatment, or other incident in which the claimed disease or injury was sustained is compared to his condition after such treatment, examination or program has stopped. See 38 C.F.R. § 3.361 (b). *Although the examiner must review the record, his or her attention is drawn to the following: In November 2007 the Veteran twisted his ankle when he walked on uneven ground near the Prescott VAMC, where he worked at a coffee concession stand. The following day he reported to the emergency department that he had pain, tenderness, and the examiner noted the Veteran's ankle was swollen. An x-ray detected no fractures and no significant soft tissue swelling, and no evidence of a fracture. In December 2007 the Veteran complained of a plantar wart on the bottom of his left foot and requested a podiatry consultation. The Veteran reports that in his job at the concession, he regularly saw one of his VA treating physicians. The Veteran maintains that he continued to have left ankle pain. The physician apparently increased the Veteran's prescribed medications for pain. The Veteran was given a second x-ray in August 2008 that confirmed he did not have a fracture but that he had a tiny plantar calcaneal spur and evidence of early degenerative joint disease in his first metatarsophalangeal (MTP) joint. Also in August 2008, a bone scan was done due to concerns of arthritic pain and a possible rheumatoid arthritis diagnosis. The bone scan indicated an uptake in the left ankle distal radius area, and the examiner noted this uptake might indicate possible degenerative changes or post-traumatic findings. In September 2008 the Veteran underwent a podiatry evaluation. He reported pain during non-weight bearing that felt like a loose body was inside. An MRI was ordered. In November 2008 a CT scan showed no acute fractures, but the examiner noted the imaging was limited and advised that if the Veteran continued to report pain a followup imaging consultation would be warranted. In December 2008 an MRI revealed tenosynovitis of the peroneal tendons, believed to be avascular necrosis of the talar dome in his left ankle. The examiner recommended a consultation with the orthopedical surgical unit for an arthroscopy examination. In January 2009 the Veteran was advised to have surgery. The Veteran testified that he delayed this surgery because his job at the Prescott VA had become permanent and that he needed to earn leave in order to take paid time off from work for the surgery. He also reported that he was taking courses and had to manage these considerations when scheduling the surgery. The Veteran underwent surgery in February 2010 for osteochondritis dissecans (OCD). The Veteran reported that the Prescott VA did not conduct additional imaging to determine the current state of the ankle prior to the surgery. In a September 2010 VA medical opinion, an examiner reviewed the medical records for a history of the complaints, diagnoses, and treatments after the initial injury. The examiner opined the Veteran's surgical repair for left talar OCD was not caused by or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA because the Veteran's initial injury was mild, and was appropriately treated conservatively in a timely fashion. The examiner noted the Veteran did not seek care for this condition for several months after his initial injury presentation, and that therefore there was no delay in diagnosis or treatment on the part of the VA. The examiner then noted that once the bone scan results returned, an MRI was conducted for a more definitive diagnosis. The examiner opined the necrosis finding likely led to the OCD, and that surgical management was timely recommended. In an October 2014 statement, a non-VA physician reviewed the Veteran's medical records dated from November 2007 to 2013. The physician noted that the records indicate that between November 2007 and November 2008 no additional imaging of the left ankle was in the records he received. He also noted that his treatment method was to provide initial conservative treatment to an ankle sprain, such as immobilization, stabilization, and range of motion exercises. The non-VA examiner noted that if an ankle sprain injury did not respond to this conservative treatment after four to six weeks, he would require a more "definitive" diagnosis, to include ordering MRI and further evaluation. The physician noted that the medical records he obtained from the Veteran indicated that further imaging was not done until a year after the initial x-ray and that indications that a radiologist recommended a correlation with an MRI that did not appear in the record may suggest that the physician did not have the entire medical chart concerning the Veteran's treatment in his possession. 3. After receipt of the examiner's opinion, the RO must insure that the opinion is factually-informed and fully explained. If so, the RO will proceed to adjudicate the claim, including if appropriate the issue of a Supplemental Statement of the Case. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Anwar, Attorney-Advisor 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.