Citation Nr: 21066087 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 12-05 882 DATE: October 28, 2021 REMANDED Entitlement to compensation pursuant to 38 U.S.C. § 1151 for laryngeal and phrenic nerve injury as residuals of a February 2010 carotid subclavian bypass surgery is remanded. REASONS FOR REMAND The Veteran had active service from November 1975 to April 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. A transcript of his testimony is of record. In a March 2018 decision, the Board denied the Veteran's claim for compensation pursuant to 38 U.S.C. § 1151 for laryngeal and phrenic nerve injury as residuals of a February 2010 carotid subclavian bypass surgery. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). A March 2021 memorandum decision vacated the March 2018 decision and remanded the claim to the Board for further adjudication. 1. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for laryngeal and phrenic nerve injury as residuals of a February 2010 carotid subclavian bypass surgery is remanded. In accordance with the Court's decision, the Board finds that a remand for an addendum opinion is required. Specifically, the Court found that the VA opinions were inadequate to adjudicate the claim as they failed to address the significance of both nerves being injured during the same surgery. Accordingly, further clarification is required. Additionally, in a July 2021 correspondence, the Veteran's representative requested that the Board remand the claim so that the RO could provide information regarding the VA clinician's qualifications. Accordingly, a remand is required so that the Veteran and his representative can be provided a copy of the clinician's qualifications. Finally, the evidence indicates there may be outstanding relevant VA treatment records. VA records from November 25, 2009, February 3, 2010, and July 22, 2011 indicate that emergency room records from November 24, 2009, February 1, 2010, and July 21, 2011 were scanned into VistA Imaging. VA records from February 12, 2010 and March 17, 2010 indicate that January 21, 2010 and February 11, 2010 nursing records were scanned. VA records from January 25, 2010, February 17, 2010, February 18, 2010, and February 19, 2010 indicate that inpatient records and flowsheets from January 20, 2010, February 16, 2010, February 17, 2010, February 18, 2010, and February 19, 2010 had been scanned. A VA record from August 22, 2011 indicates that an August 8, 2011 non-VA record was scanned. A VA record from April 20, 2012 indicates that an October 25, 2011 vascular record had been scanned. VA treatment records from January 4, 2013 and June 21, 2013 note that VA vascular records from those dates had been scanned. A September 10, 2013 VA record indicates that pulmonary function report from that date had been scanned. A December 8, 2015 VA record indicates that vascular lab documents from that date were scanned. VA records from May 23, 2016 and May 24, 2016 indicate that unidentified progress notes from Boyd Heart and Vascular were scanned. A VA record from August 23, 2016 indicates that records from that date from Cardiac Center of San Antonio were scanned. It does not appear that the referenced scanned records from VistA Imaging have been associated with the claims file. A remand to obtain the outstanding records is required. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records as well as the VistA Imaging records referenced in the November 25, 2009, February 3, 2010, January 25, 2010, February 12, 2010, February 17, 2010, February 18, 2010 February 19, 2010, March 17, 2010, July 22, 2011, August 22, 2011, April 20, 2012, January 4, 2013, June 21, 2013, September 10, 2013, December 8, 2015, May 23, 2016, and August 23, 2016 VA record entries. If any requested records are unavailable, the Veteran should be notified of such. 2. After records development is completed to the extent possible, forward the claims file to a VA clinician to obtain an addendum opinion regarding the Veteran's 1151 claim. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should opine: (a.) Was the February 2010 bypass surgery medically necessary? If not, was the decision to perform that surgery 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 medical treatment? The clinician should address the June 2015 private opinion indicating that the procedure was not necessary to any degree of certainty because no comparison of bilateral arm pressure was taken and that the surgery and that it appeared surgery was done based on the finding of a low pressure alone without any documentation of worsening of symptoms by arm movement induced exercise. (b.) Was the Veteran's laryngeal and phrenic nerve injury at least as likely as not (50 percent probability or greater) 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 hospital care, medical, or surgical treatment? (c.) Was the Veteran's laryngeal and phrenic nerve injury at least as likely as not (50 percent probability or greater) an event that was not reasonably foreseeable? The clinician is advised that the event need not be 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 rendering the above requested opinions, the clinician must address the fact that both nerves were injured during the surgery; the June 2015 private medical opinion from Dr. Boyd indicating that a dual nerve injury would not be expected under normal circumstances; the treatise evidence cited by the VA clinician in the March 2016 opinion as they relate to the facts of this Veteran's case; and the February 16, 2010 informed consent document that was uploaded into the claims file on February 3, 2016. A complete rationale should be provided for all opinions and conclusions expressed. 3. Respond to the representative's July 2021 request for a copy of the qualifications for the clinician(s) that provided opinions for this case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Anderson 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.