Citation Nr: 21066781 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 12-30 169 DATE: November 2, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for a left knee disability is remanded. REASONS FOR REMAND This matter was most recently before the Board of Veterans' Appeals (Board) in November 2020, when it was remanded for the second time in efforts to obtain an opinion addressing the following three questions: a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran has additional disability following VA treatment? If so, please precisely define this additional disability. b.) If additional disability is identified in response to the first question, is it at least as likely as not (50 percent probability or greater) that there is a causal nexus between the VA treatment and the additional disability? c.) If there is a causal nexus between the VA treatment and the additional disability, is it at least as likely as not (50 percent probability or greater) that the additional disability is proximately due to fault on VA's part (i.e., VA failed to exercise the degree of care that would be expected of a reasonable health care provider or VA furnished the care or treatment without informed consent), to include whether allowing the Veteran to play basketball during VA in-patient rehabilitation treatment within the degree of care that would be expected of a reasonable health care provider, OR that the additional disability is proximately due to an event not reasonably foreseeable at the time the care or treatment was provided, to include whether an injury playing basketball a reasonably foreseeable event at the time the Veteran entered VA in-patient rehabilitation treatment? The Board's remand directives further instructed the Agency of Original Jurisdiction (AOJ) that if the selected examiner's report does not explicitly answer the questions as written it should be returned to the examiner as incomplete. The record reflects the AOJ requested an opinion, as directed, in December 2020. In February 2021, a VA examiner provided an opinion in response to the AOJ's request; however, the February 2021 VA examiner failed to explicitly answer the questions as written rather opting to provide a narrative that does not adequately address the Board's inquiry in this case. The Board notes its specific inquiry in this case revolves around whether permitting the Veteran to play basketball during VA in-patient rehabilitation treatment was within the degree of care that would be expected of a reasonable health care provider and/or whether an injury playing basketball was a reasonably foreseeable event at the time the Veteran entered VA in-patient rehabilitation treatment. The February 2021 VA examiner's opinion, while acknowledging the injury during the Veteran's in-patient rehabilitation treatment, does not address either aspect of the Board's specific inquiry in this case as outlined in its prior remand directives. As a result, there has not been substantial compliance with the Board's prior remand directives, requiring another remand of this appeal. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is REMANDED for the following action: Obtain a new opinion regarding the Veteran's 1151 claim, preferably from an examiner who has not previously provided an opinion regarding the claim, that explicitly addresses the following questions: a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran has additional disability following VA treatment? If so, please precisely define this additional disability. b.) If additional disability is identified in response to the first question, is it at least as likely as not (50 percent probability or greater) that there is a causal nexus between the VA treatment and the additional disability? c.) If there is a causal nexus between the VA treatment and the additional disability, is it at least as likely as not (50 percent probability or greater) that the additional disability is proximately due to fault on VA's part (i.e., VA failed to exercise the degree of care that would be expected of a reasonable health care provider or VA furnished the care or treatment without informed consent), to include whether allowing the Veteran to play basketball during VA in-patient rehabilitation treatment was within the degree of care that would be expected of a reasonable health care provider, OR that the additional disability is proximately due to an event not reasonably foreseeable at the time the care or treatment was provided, to include whether an injury playing basketball a reasonably foreseeable event at the time the Veteran entered VA in-patient rehabilitation treatment? The selected examiner must answer each question in sequential order and provide a complete rationale to support his or her answer to each question. If the report does not explicitly address the questions noted above, it must be returned to the examiner as incomplete. The Board reiterates the selected examiner must directly answer each question as written rather than providing a free-text summary response similar to that provided by previous examiners. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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.