Citation Nr: 21064110 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 17-48 369 DATE: October 19, 2021 REMANDED The issue of entitlement to compensation under the provisions of 38 U.S.C. § 1151 for an additional right foot disability, to include right fourth toe amputation residuals, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1972 to February 1976 and March 1976 to April 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The record reflects that the Veteran is in a state of financial hardship and currently in hospice. The Board has interpreted these reports as a motion to advance the case on the docket and the Board will grant the motion. Accordingly, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). This matter was last before the Board in November 2019, when it was remanded for further development. In this case, the Veteran contends that VA medical personnel at Binghamton Community-Based Outpatient Clinic (CBOC) failed to properly treat a right foot injury, which gave rise to residual complications, including undergoing a right fourth toe amputation and "vascular surgery on [his] right leg to restore blood flow to [his right] foot." See October 2019 Appellate Brief. He also argues that VA failed to provide him with proper diagnostic testing to timely and accurately diagnose and identify the correct course of treatment for his right foot injury, which "would have... avoided [the right fourth toe amputation]." See id. The prior November 2019 Board remand included a summary of the medical events leading up the claimed right foot disability, which will not be repeated here. In November 2019, the Board remanded the matter in order to obtain a medical opinion. The Board remand also directed that the December 2016 VA medical opinion be addressed, in which the examiner opined the Veteran's right fourth toe amputation was not a result of unreasonable VA medical care or other similar fault from VA. The opinion was largely premised on the finding that the initial right foot injury, which was first treated at a non-VA clinic and then treated by Binghamton CBOC medical staff, "was healing" at the time the Veteran injured his right fourth toe, implying that the two medical events were unrelated. However, the December 2016 examiner also stated there was "significant swelling of the right foot initially which did not allow for the evaluation of the metatarsals of the right" and that without such swelling, the Charcot right foot would have been evident earlier, suggesting a possibility that had Charcot right foot been detected at the time of the earlier treatment at Binghamton CBOC in November 2015 they would have found out earlier about his foot issues and could have avoided toe amputation. An opinion was obtained pursuant to the Board remand in April 2020. Although the April 2020 opinion appears to address whether there is an additional disability as due to the negligence or fault on the part of VA treatment providers, the opinion did not adequately address the critical question regarding whether the development of an additional disability was a reasonably foreseeable consequence of VA treatment. As such, a remand is necessary to obtain a new medical opinion that adequately addresses the dispositive inquiries in this case. The matters are REMANDED for the following action: The Veteran's claims file must be furnished to a new VA treatment provider for review and a medical opinion (and examination, if found necessary). The treatment provider is requested to review records of the course of VA treatment beginning in November 2015. The examiner is to opine on the following: (a) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has any additional right foot disability or disabilities caused or worsened by VA's medical care. If so, the physician must specifically list each additional disability. The examiner should consider whether the Veteran's right lower extremity vascular operation (right femoral popliteal bypass) is an additional disability that was caused or worsened by VA's medical care. See VBMS, document labeled CAPRI, receipt date 3/5/2018, pages 150 out of 343. (b) whether it is at least likely as not (a 50 percent or greater probability) that any additional disability was proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination. (c) whether it is at least as likely as not (a 50 percent or greater probability) that any additional disability was proximately caused by a treatment-related event that was NOT reasonably foreseeable. The examiner is advised that, whether the proximate (i.e., direct) cause of a Veteran's additional disability was an event not reasonably foreseeable is to be determined based on what a reasonable health care provider would have foreseen. The causal event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In addition, the examiner should consider the following evidence: 1) The discrepancy in the December 2016 VA medical opinion, in which the examiner essentially found that the initial right foot injury and the subsequent right fourth toe injury were unrelated, but then also concluded that there was a "significant swelling" in the right foot, which did not allow for an earlier diagnosis of Charcot right foot, suggesting the possibility that had Charcot right foot been detected earlier, the right fourth toe amputation could have been avoided; 2) the Veteran's argument that had Binghamton CBOC used a proper diagnostic testing to render correct and timely diagnoses and course of treatment, to include an earlier diagnosis of Charcot right foot, the amputation could have been avoided; 3) VA treatment records at Syracuse VAMC, suggesting that the initial right foot injury was not adequately healed at the time of the right fourth toe injury, leaving the possibility that the toe injury became more susceptible for infections and complications. See VBMS, document labeled CAPRI, receipt date 3/5/2018, pages 150 and 296 out of 343. The examination report must include a complete rationale for all opinions expressed. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ariasaif, 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.