Citation Nr: 21063806 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 16-51 568 DATE: October 18, 2021 ISSUE Entitlement to compensation under 38 U.S.C. § 1151 for additional disability due to September 2011 infiltration event and November 2012 surgical procedure. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for additional disability due to September 2011 infiltration event and November 2012 surgical procedure is remanded. REASONS FOR REMAND The Appellant had honorable active duty service from March 1980 to October 1980. This case comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2020 the Appellant testified in a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript is of record. When this case was previously before the Board in January 2021, it was decided in part and remanded in part for additional evidentiary development. It has since been returned to the Board for further appellate action. The Appellant provided detailed testimony regarding a sequence of events pertaining to his medical care that he contends caused his disability. His written appeal to the Board also sets out his theories of entitlement. In his testimony, he alleged various acts or omissions by the VA constituting negligence, fault, or events not reasonably foreseeable, beginning with an intravenous medication (Remicade) that was being administered on a monthly basis for Crohn's disease. He alleges that because the intravenous medication infiltrated and pumped into his subcutaneous tissue, he did not get the full benefit of the Remicade; he contends he had to go back on Prednisone when a blockage was discovered less than a month later. He contends this caused him to be dependent on the steroid and for his skin to be in a weaker state for a subsequent surgery. The Appellant contends that during the subsequent surgery, incorrect sutures were used, and a spinal catheter was improperly administered. The Appellant contends an infection was improperly treated by the VA, and contends that this, as well as the Prednisone use, caused a hernia to develop or fail to heal properly. The Board noted in the January 2021 remand that review of the record seemed to support Prednisone use having some complicating effects on the surgery. The Board found, however, that the evidence of record did not clearly address whether Prednisone use was the result of the infiltration event, as alleged, and if the infiltration event was due to negligence, lack of care, or similar instance of fault on the part of VA. In response to the Board's remand, a VA-contracted opinion was obtained in July 2021 in which the examiner addressed the question of whether it was at least as likely as not (50 percent probability) or greater) that the Appellant's additional disability, to include hernia, was due to (caused or aggravated by) negligence, lack of care, or similar instance of fault on the part of VA, or was not reasonably foreseeable as a result of the treatment and surgery. However, the examiner did not address the question posed by the Board as to whether the Veteran's Prednisone use at the time of his November 2012 surgical procedure(s) was, as likely as not, related to the September 2011 Remicade intravenous infiltration event. If so, the examiner was to provide an opinion regarding whether the infiltration event was due to (caused or aggravated by) negligence, lack of care, or similar instance of fault on the part of VA. As such, an addendum opinion should be sought on remand. The matters are REMANDED for the following action: 1. Provide access to the electronic claims file to the July 2021 examiner or to an appropriate substitute (from a VA facility other than the VA Durham medical facility) being a gastroenterologist or similarly qualified medical professional knowledgeable in the treatment of Crohn's disease. The specialist should review the Appellant's Section 1151 claim. The Appellant's electronic claims file, including a copy of this remand, must be made available to the specialist for review in connection with the opinion. The specialist is to offer an opinion as to whether the Veteran's Prednisone use at the time of his November 2012 surgical procedure(s) was, as likely as not, related to the September 2011 Remicade intravenous infiltration event. If so, provide an opinion regarding whether the infiltration event was due to (caused or aggravated by) negligence, lack of care, or similar instance of fault on the part of VA. A full and complete rationale for any stated opinion is required. 2. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the appellant, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The appellant and his representative should be afforded the applicable time period to respond. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.