Citation Nr: 21062267 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 14-20 716 DATE: October 6, 2021 REMANDED Entitlement to compensation pursuant to 38 U.S.C. § 1151 for bilateral lower extremity amputation is remanded. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) and depressive disorder is remanded. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served honorably in the Army from July 1976 to October 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision and an October 2014 rating decision. The April 2012 decision denied service connection for any mental disorder and denied entitlement to a TDIU. The October 2014 decision denied entitlement to compensation under 38 U.S.C. § 1151 for bilateral lower extremity amputation. In April 2017, the Veteran testified at a Board video hearing. A copy of the hearing transcript is of record. During the pendency of the appeal, the Veterans Law Judge (VLJ) who presided over the hearing retired. The Veteran was apprised of such and afforded the opportunity to request another hearing. The Veteran did not respond within the designated time. Thus, he is considered to have waived the optional rehearing. In March 2021, these matters were remanded. 1. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for bilateral lower extremity amputation is remanded. In March 2021, the Board remanded this matter for an independent medical opinion with a medical expert pursuant to 38 U.S.C. § 5109 due to the medical complexity involved in this matter. The Veteran's representative has pointed out that Dr. Franklin is a family doctor not a surgeon who is qualified to give the advisory opinion on a specialty surgery or complex vascular disease. Pursuant to 38 U.S.C. § 5109, the Board will obtain another medical opinion from a cardiac surgeon. 2. Entitlement to service connection for an acquired psychiatric disorder to include PTSD and depressive disorder is remanded. The Veteran contends that his acquired psychiatric disorder is related to his amputation. A decision on this claim must be deferred. As the April 2021 medical opinion obtain to address secondary service connection only addressed aggravation. A nexus opinion regarding whether the Veteran's psychiatric disability is proximately due to or the result of his bilateral lower extremity amputation must be precured. Thus, a remand is warranted. 3. Entitlement to TDIU is remanded. The issue of entitlement to a TDIU is intertwined with the remanded claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Thus, a remand is warranted. The matters are REMANDED for the following actions: 1. Forward the claims file to a qualified independent medical expert (e.g. cardiac surgeon) pursuant to 38 U.S.C. § 5109 in connection with the § 1151 claim. The examiner is asked to address each of the following: Identify 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, in addressing the standard of care, should discuss the following points: a) At what point did the condition that necessitated amputation of the right toe initially manifest? The examiner's attention is drawn to the September 27, 2011 Salem VAMC notation of a change in toe color to black for five months and the July 22, 2011 VA treatment note listing a report of the foot being "almost black." If prior to the September 28, 2011 surgery, was there any undue delay or missed diagnosis of the gangrene condition? b) At any step in the sequence of events, would different treatment of any condition have avoided the sequence of events that required amputation(s)? c) Would the gangrene/infection that ultimately required amputation have occurred if the Veteran had not undergone femoral bypass surgery on September 28, 2011? Was there any error or complication during this procedure? Please discuss the significance of the treatment notes, to include the notations that blood flow through the bypass could not be demonstrated post-surgery, concerns regarding the graft patency, and the notations regarding the lack of a pulse, and the notations of pain in the right foot and the right toes being cold over numerous days after the surgery. Finally, the clinician should provide an opinion as to whether the identified additional disability was an event not reasonably foreseeable as related to any specific treatment (or lack thereof). 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. A complete rationale must be provided for all opinions rendered. 2. Obtain an addendum opinion from an appropriate clinician regarding whether it is at least as likely as not (50 percent probability or greater) that the Veteran's psychiatric disability is proximately due to or a result of his bilateral lower extremity amputations. Aggravation under 38 C.F.R. § 3.310 (b) does not require that there be "permanent" worsening of the nonservice connected disability. The examiner must provide separate findings and rationales relating to causation and aggravation. A complete rationale must be provided for all opinions rendered. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Smith, 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.