Citation Nr: 21061894 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-45 069 DATE: October 5, 2021 REMANDED Compensation benefits pursuant to 38 U.S.C. § 1151 for a right shoulder disability, to include right brachial plexopathy status post total right shoulder arthroplasty, is remanded. REASONS FOR REMAND The Veteran, who is the Appellant, served on active duty from February 1991 to October 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision from the Regional Office (RO), which, in pertinent part, denied § 1151 compensation benefits for a right shoulder disability. In December 2019, the Board remanded the issue on appeal for additional development to obtain an addendum VA medical opinion. To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In April 2017, the VA examiner opined that it is less likely than not that the additional disability (i.e., right brachial plexopathy status post total right shoulder arthoplasty) resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel; however, the rationale provided was that the examiner could not determine carelessness, negligence or lack of skill because the examiner did not personally witness the surgical procedure. See April 2017 VA examination report. Following a Board remand for clarification as to probability (50 percent or greater probability) that the additional disability was caused by VA carelessness, negligence, lack of skill, or similar instance of fault in rendering the right shoulder surgery, the same examiner reiterated that it is difficult to assign blame without having observed the surgery or knowing all the finer details of the surgical procedure, other than reading the operative report. The VA examiner was also unable to locate any "statement of error" from the operating surgeon, Dr. Collinet, in the record. See January 2021 VA examination report. It is not clear that the VA examiner reviewed the April 2015 statement from Dr. Collinet detailing the pre-, present, and post-operative course that led to the shoulder disability. The examiner does not convincingly explain why the pertinent evidence of record, to include Dr. Collinet's statement regarding the surgery, the February 2015 operative report, the February 2015 discharge summary, and the medical evidence documenting the pre- and post- operative course of the right shoulder disability are not sufficient to provide a medical opinion regarding whether there was negligence, carelessness, lack of skill, or similar instance of fault on the part of VA in this case, despite not having personally observed the operation, particularly given the examiner's own medical knowledge and experience and the knowledge in the medical community at large regarding this particular orthopedic surgery. To assist the Veteran with a responsive opinion supported by a rationale, a remand is necessary to obtain an opinion with adequate rationale on the question of whether the current right brachial plexopathy was proximately caused by VA negligence, carelessness, lack of skill, or similar instance of fault on the part of VA in treating the Veteran. The matter is REMANDED for the following action: Schedule a VA medical opinion with a different VA examiner to address the question of whether there was negligence, carelessness, lack of skill, or similar instance of fault on the part of VA regarding treatment for the right shoulder disability. The relevant documents in the record should be reviewed by the examiner and a history of relevant symptoms should be obtained from the record. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The examiner should offer the opinion: Is it at least as likely as not (50 percent or greater probability) that the additional right shoulder disability, to include right brachial plexopathy status post total right shoulder arthroplasty, resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel during the February 2015 surgery and during the aftercare? In rendering the requested opinion, the examiner should address Dr. Collinet's April 2015 statement regarding the surgery, the February 2015 operative report and discharge summary, and other pertinent medical evidence detailing the post-operative course of the right shoulder disability. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna 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.