Citation Nr: 21065724 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 16-28 453 DATE: October 27, 2021 REMANDED Entitlement to compensation pursuant to 38 U.S.C. § 1151 for a right lower extremity disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1970 through December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his wife presented sworn testimony before the undersigned Veterans Law Judge in July 2017. In a July 2020 decision, the Board denied entitlement to compensation pursuant to 38 U.S.C. § 1151 for a right lower extremity disorder. The Veteran appealed the Board's July 2020 decision to the United States Court of Appeals for Veterans Claims (Court), which in a May 2021 order, granted the parties' joint motions for remand (JMR), vacating the Board's July 2020 decision and remanding the claim for compliance with the terms of the JMR. 1. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for a right lower extremity disorder is remanded. In the May 2021 joint motion for remand, the parties determined that the Board erred when it failed to address arguments raised by the Veteran and his representative in the June 2016 VA Form 9 and the April 2020 VA Form 646. Specifically, the Veteran argued that the May 2012 VA examination relied on incorrect information, namely that the Veteran smoked one pack of cigarettes per week rather than one pack per day and that the Veteran did not injure his foot after the surgery. The Veteran also argued that the April 2019 VA examination was inadequate as it was vague and did not identify an alternative etiology for the bacterial infection following right foot surgery. Finally, the Veteran argued that the Board erred because it failed to provide clear findings as to how it weighed the August 2013 private medical record. In August 2013, a private doctor noted that the Veteran's problem stems from a surgical case from VA and follow-up with their staff. The Veteran's problem went unrecognized for an extensive period of time. Given the Veteran's contentions and in compliance with the Court's May 2021 order granting the parties' JMR, the Board finds remand necessary to obtain a new examination that clearly and adequately addresses the Veteran's claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the JMR or explain why the terms will not be fulfilled.). The matters are REMANDED for the following action: 1. Obtain all outstanding medical treatment records. 2. Notify the Veteran that he may submit a statement from his treating physician, addressing whether the Veteran has additional disability that was either not reasonably foreseeable or was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. The Veteran should be provided an appropriate amount of time to submit this evidence. 3. Schedule the Veteran for an appropriate VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) from an independent medical expert that is responsive to the following inquiries: 1) Is it at least as likely as not that the Veteran suffered additional disability to his right lower extremity as a result of VA surgery or follow-up treatment thereafter? If so, please describe each disability that the Veteran suffered. If not, please provide a discussion of the facts and medical principles considered in reaching this conclusion, including a discussion of the reported symptomatology in the record. In doing so please acknowledge and discuss the Veteran's lay statements. 2) If the Veteran did suffer additional disability to right lower extremity, is it at least as likely as not that such additional disability was 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? Specifically, given the August 2013 record, the examiner should discuss if a surgery was conducted improperly and/or whether diagnosing the Veteran's infection earlier would have changed the outcome. 3) For any additional disability identified in response to the above, was the additional disability caused by an event not reasonably foreseeable? Specifically, the reviewing clinician is asked to state whether the additional disability was the type of risk that a reasonable health care provider would not have anticipated as a result of the care provided. The examiner should provide etiology, if possible, for the bacterial infection that developed after the Veteran's right foot surgery. In reaching your conclusions, please consider and comment on the August 2013 private medical record and the Veteran's lay statements as to the symptoms he had and continues to experience. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.