Citation Nr: 21065077 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-25 480 DATE: October 25, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for additional disability caused by VA surgical care, to include amputation left leg above the knee, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1966 to May 1968 and from April 1978 to September 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. Entitlement to compensation under 38 U.S.C. § 1151 Unfortunately, another remand is required as there has not been substantial compliance with the Board's previous remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives); Dyment v. West, 13 Vet. App. 141, 146-47 (1997) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). In this regard, the March 2020 remand directed the RO to obtain an opinion addressing the Veteran's claim of entitlement to compensation for an additional disability caused by VA surgical care and treatment. The examiner was directed to determine whether the Veteran had an additional left leg disability as a result of the two left leg femoral bypass surgeries and post-operative treatment which led to a wound infection and amputation of the left leg above the knee. The May 2020 VA examiner did not directly answer whether the Veteran has an additional left leg disability as a result of VA surgical care and post-operative treatment. Although the examiner opined that the Veteran's leg disability and amputation did not become worse due to VA care, the question of whether his leg disability and amputation were caused such care remains unanswered. The Board also finds that the May 2020 opinion is internally inconsistent. In this regard, the examiner stated that the December 2014 and January 2015 surgeon did not deviate from the standard of care, but the examiner also stated the surgeon had issues of judgment and technical errors in the execution of the surgeries. Accordingly, the issue of whether the proximate cause of any additional disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the surgical care and post-operative treatment remains open. Finally, the May 2020 examiner stated multiple times that the Veteran's left leg would have been eventually amputated due to the severity of his peripheral vascular disease. The Board notes that hospital care or medical or surgical treatment cannot be found to cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361. Here, the Board finds that the record is unclear as to whether the above the knee amputation of the Veteran's left leg was the continuance or natural progression of his peripheral vascular disease. On remand, an addendum opinion should be obtained, as set forth below. The matters are REMANDED for the following action: 1. Return the claims file to the May 2020 examiner. If this examiner is not available forward the claims file to another vascular medical doctor or surgeon (or another appropriate specialist). Following a review of the claims file, to include this REMAND, the examiner should respond to the following: (a) Determine whether the Veteran has an additional left leg disability as a result of the two surgical left leg femoral bypasses and post-operative treatment that led to a wound infection and the subsequent amputation of the left leg above the knee, to include said amputation. (b) For each additional left leg disability identified, the examiner is asked to opine whether it was at least as likely as not (50 percent probability or greater) that it was proximately caused by or became worse as a result of the December 2014 femoral bypass, January 2015 femoral bypass, and post-operative treatment. (c) If the answer to (b) is positive, opine as to whether it is at least as likely as not (50 percent probability or greater) that such additional disability was caused by carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA during the VA surgeries and hospitalizations in December 2014 through February 2015; that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or whether it is at least as likely as not that such pathology was due to an event not reasonably foreseeable, an event that a reasonable health care provider would not have considered to be an ordinary risk of the treatment/hospitalization. (d) In addressing the disability of the above the knee amputation of the Veteran's left leg, the examiner is asked to opine whether it was at least as likely as not (50 percent probability or greater) that the amputation was the continuance or natural progression of the Veteran's peripheral vascular disease or whether the failure on the part of VA to timely diagnosis and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. 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 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. A complete rationale for all opinions must be provided. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. M. Stedman, 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.