Citation Nr: 21066283 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 17-21 287 DATE: October 29, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for left eye partial loss of sight (due to carotid artery surgery) is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for jaw injury (also claimed as fracture), pain, nerve damage, and numbness in chin (due to carotid artery surgery) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1961 to October 1964. The case is on appeal from a February 2015 rating decision. In April 2019, the Veteran testified at a Board hearing. The matter was previously remanded in November 2019. In January 2020, the Veteran submitted a VA 20-0995 Supplemental Claim Application that reads in part as follows: [F]rom remand: left eye atrial loss and jaw injury I AM WILLING TO REPORT TO EXAMS[.] [T]he scheduling company tried to schedule me two hours one way from my home. They cancelled the appointment and would not reschedule me. A Supplemental Claim form cannot be used to appeal a Board remand. The RO rejected this form in a March 2020 letter that has not been appealed. In July 2020, a Supplemental Statement of the Case issued. As the January 2020 Supplemental Claim form has been rejected and there has been no opt-in into the modernized system, the Board shall proceed to adjudicate the appeal under the legacy system. 1. Entitlement to compensation under 38 U.S.C. § 1151 for left eye partial loss of sight (due to carotid artery surgery) is remanded. 2. Entitlement to compensation under 38 U.S.C. § 1151 for jaw injury (also claimed as fracture), pain, nerve damage, and numbness in chin (due to carotid artery surgery) is remanded. In November 2019, the Board remanded the Veteran's appeal to obtain an advisory medical opinion from an independent medical expert (IME). The examiner was instructed to opine as to complications resulting from the Veteran's October 2013 carotid artery surgery, specifically the left eye partial loss of sight and jaw injury. The Board instructed the examiner to address the Veteran's statements about consent and a Journal of American Medical Association (JAMA) article regarding common complications from his surgery. In December 2019, the RO obtained a medical opinion that only addressed the Veteran's left eye disorder. In February 2020, the RO obtained medical opinions concluding that the Veteran's eye and jaw disorders are less likely than not related to service. Neither opinion addresses the Veteran's statements about consent or the JAMA article. The Board finds that its prior remand instructions were not complied with and that an additional remand is required. The matters are REMANDED for the following action: Obtain an advisory medical opinion from an independent medical expert (IME) regarding the complications resulting from the Veteran's October 2013 carotid artery surgery. Specifically, the IME should opine as to whether: (a.) The Veteran's left eye partial loss of sight or jaw injury (also claimed as fracture), pain, nerve damage, numbness in chin are due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. (b.) Whether the Veteran's left eye partial loss of sight or jaw injury (also claimed as fracture), pain, nerve damage, numbness in chin was an event not reasonably foreseeable. That is, was developing the identified residuals the type of risk that a reasonable health care provider would have disclosed in connection with informed consent procedures? A complete rationale should be provided for any opinion rendered. Please note the Veteran's informed consent signed in October 2013, his statements that he would have not consented to the surgery unless the head of surgery was conducting the surgery, that it was negligent for VA to allow a first-year resident (listed as the assistant surgeon) to perform the surgery. In this regard, also note the Veteran's report that he was told by a nurse practitioner (who he thought was a physician) that the head of surgery would be doing his procedure. In addressing whether the complications were reasonably foreseeable, note reported complications from JAMA as mortality at 0.7 percent and major cardiac complications at 1.0 percent and preoperative stroke at 1.0 percent. In doing so, please note the January 2015 examiner's observation that "Informed consent was obtained prior to the operation but covered the above complications in a general sense. Embolism was covered (and may result in "injury to organs") but no specific target organ(s) (i.e. eye) was/were mentioned." STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cannon, Brian 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.