Citation Nr: 21064684 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 14-20 255A DATE: October 21, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a hernia operation is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1975 to December 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 9, 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in April 2018 and the claim was denied. An October 2018 Joint Motion for Remand (JMR) was entered in the U.S. Court of Appeals for Veterans Claims (Court). The Board remanded the case in May 2019 and again in November 2020 for further development including a medical examination. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a hernia operation is remanded. A review of the record shows the Veteran had a September 2008 inguinal hernia operation on his left side at Bay Pines VA Medical Center. See August 2011 VA Claim. The Veteran contends that he has had numbness at the site of the hernia operation since the date of surgery. See August 2011 Claim. In its November 2020 remand, the Board noted that the informed consent form associated with the September 2008 surgery has not been provided in full and that only two of six pages are of record. The Board directed that the complete form should be associated with the record. While on remand, it does not appear that the agency of original jurisdiction (AOJ) took any action to obtain the complete informed consent form. As the AOJ did not substantially comply with the Board's previous remand directives when it failed to obtain the complete informed consent documentation from the September 2008 surgery, a remand is warranted for corrective action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also remanded the instant matter in November 2020 to obtain a VA opinion. Specifically, the VA examiner was directed to opine as to whether the Veteran had an additional disability as a result of the September 2008 VA medical treatment, whether the sural sensory polyneuropathy indicated by the electromyogram nerve conductive study is related to the Veteran's September 2008 VA medical treatment, and whether any such additional disability is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the treatment and/or that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. The examiner was also directed to opine as to whether any additional disability is the result of an event not reasonably foreseeable by a reasonable health care provider. Such an opinion was obtained in August 2021. The VA examiner opined that the Veteran's sural sensory polyneuropathy was at least as likely as not related to his September 2008 VA medical treatment and that his hernia repair likely caused nerve injury as there is a possibility that nerves will be severed/injured during the surgical repair process. The examiner further opined that the Veteran's neuropathy was less likely due to carelessness, negligence, lack of proper skill or error in judgment as any surgical procedure has risks and complications and nerve injury in a hernia repair can be a complication without negligence as every surgery is unique to the individual and anatomical specificities may increase complications on an individual basis. However, this opinion is incomplete to decide the claim as the examiner did not address whether the Veteran's polyneuropathy was the result of fault on the part of VA in furnishing the treatment and/or that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. Rather the VA examiner generally related that such neuropathy is a potential complication of the surgery. See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative). Therefore, an addendum opinion is required. See Stegall v. West, supra. The matter is REMANDED for the following action: 1. Obtain the complete September 2008 informed consent form the Veteran signed prior to his VA treatment. This document is referenced in the VA treatment records as electronically filed on September 22, 2008 and as being located in the VISTA imaging system. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Once the above record development is complete, request an addendum medical opinion by an appropriate medical professional. The entire claims file must be reviewed by the examiner. The examiner may request additional testing if necessary. Following a complete review of the electronic claims file, the examiner is asked to provide an opinion as to: (A) With regards to the Veteran's sural sensory polyneuropathy, is it at least as likely as not (50 percent or greater probability) that this additional disability is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the treatment and/or that VA failed to exercise the degree of care that would be expected of a reasonable health care provider? (B) With regards to the Veteran's sural sensory polyneuropathy, is it at least as likely as not (50 percent probability or greater) that this additional disability is the result of an event not reasonably foreseeable by a reasonable health care provider? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.