Citation Nr: 21067709 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 10-26 451 DATE: November 5, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for a cardiac disability under a 38 U.S.C. § 1151 referral basis for a surgical procedure is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for phrenic nerve paralysis under a 38 U.S.C. § 1151 referral basis for a surgical procedure is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1975 to March 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2014, the Board, in pertinent part, denied entitlement to compensation under 38 U.S.C. § 1151 for a cardiac disability and phrenic nerve paralysis. The Veteran appealed the Board's April 2014 decision to the United States Court of Appeals for Veterans Claims (Court). In October 2015, the Court affirmed that part of the April 2014 Board decision. The Veteran appealed the Court's decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit). In May 2017, the Federal Circuit affirmed in part and vacated in part the Court's October 2015 decision, remanding the matter for further consideration. In a December 2017 memorandum decision, the Court vacated the Board's April 2014 decision and remanded the matter for further consideration. The Board notes that the Veteran presented testimony before a Veterans Law Judge (VLJ) in September 2011. The VLJ who conducted the hearing is no longer employed by the Board. In April 2020, a letter was sent to the Veteran, which offered him the opportunity to elect to appear again for a new Board hearing. In a response provided later that month, the Veteran elected to have another Board hearing. In January 2021, the Veteran testified at a virtual tele-hearing before the undersigned VLJ. A transcript of the hearing has been associated with the Veteran's electronic claims file. In May 2021, the Board remanded this matter in order to obtain an opinion regarding whether the Veteran had additional disability proximately caused by VA's referral of the Veteran for a MAZE procedure, and, if so, whether such additional disability was reasonably foreseeable as an ordinary risk of the treatment. See Ollis v. Shulkin 857 F.3d 1338, 1345-46 (Fed. Cir. 2017) (holding that even where benefits could not be granted under 38 U.S.C. § 1151 (a)(1)(A) on a negligence theory, because the medical services rendered were performed by a non-VA provider at a non-VA facility, benefits could be granted under a referral theory pursuant to § 1151(a)(1)(B) if it is determined that (1) VA medical care proximately caused the medical services (i.e., that the VA practitioners recommended that the Veteran have the medical procedure performed), (2) an "unforeseeable event" occurred, and (3) the unforeseeable event proximately caused the Veteran's additional disability, if any). In an August 2021 opinion, a VA examiner opined that it was less likely as not that the Veteran has an additional disability caused or aggravated by VA's referral for a MAZE procedure. However, the rationale for this opinion utilizes an incorrect standard and may be based on an inaccurate factual premise. In this regard, the examiner first indicated that the Veteran's claimed additional disability was only "phrenic nerve paralysis" and that this disability had resolved. The examiner stated that "in my opinion, [this] indicates there is no current claimed disability." The Board notes that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at any time during the pendency of his claim, even if the disability resolves prior to adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board also notes that the Veteran's claim has been pending since 2008 and that the Veteran was diagnosed with phrenic nerve paralysis during the pendency of this appeal, which constitutes a current disability, even if resolved at the time of the August 2021 VA opinion. Id. Moreover, in addition to seeking service connection for phrenic nerve paralysis, the Veteran seeks service connection for additional disability in the form of aggravation of an already existing cardiac disability. The examiner did not discuss this issue. Further, the examiner indicated that because the Veteran's VA physician gave the Veteran two options for where to undergo a MAZE procedure, "the Veteran had a choice to choose on his own, which he based on proximity to his house...which in my opinion, indicates choice was irrelevant of proficiency of provider performing the procedure or how many pertinent procedures the provider had performed." The examiner opined that this "indicates the choice of the NON-VA facility was clearly and unmistakably the Veteran's, which in my opinion, confounds and diminishes wrongdoing on the part of VA attending personnel." However, as discussed in detail in the May 2021 remand, the issue of negligence or fault is irrelevant under the Veteran's theory of entitlement. Accordingly, the Board finds that the August 2021 opinion is not fully responsive to the questions specified in the May 2021 Board remand. A remand by the Board confers on a claimant, as a matter of law, the right to compliance with the remand orders and provides that the Secretary of VA has a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998). An addendum opinion is needed. The matters are REMANDED for the following action: 1. Obtain a medical opinion pursuant to from a qualified physician to address whether the Veteran has additional disability caused by non-VA surgery. The clinician should specifically address each of the following: (a.) Does the Veteran have additional heart disability after the August 2007 MAZE procedure performed at the Methodist Medical Center of Oak Ridge, Tennessee that he did not have prior to such treatment? If so, please identify the additional disability, to include whether there is additional disability in the form of aggravation of an already existing cardiac disability. (b.) If the Veteran has an additional heart disability caused (or aggravated) by the VA's referral for a MAZE procedure, is it at least as likely as not that such additional disability was reasonably foreseeable as an ordinary risk of the treatment? Please thoroughly explain why or why not. In answering this question, the examiner is asked to consider whether the condition resulting from the MAZE procedure was a risk that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided--not what the treating providers might have actually foreseen in treating the Veteran. (c.) Was the phrenic nerve paralysis the Veteran developed after the August 2007 MAZE procedure an event not reasonably foreseeable (i.e., the type of risk that a reasonable health care provider would not have disclosed in informed consent procedures), or was it an ordinary known risk of the surgery performed? In answering this question, the examiner is asked to consider whether the condition resulting from the MAZE procedure was a risk that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided--not what the treating providers might have actually foreseen in treating the Veteran. In making these determinations, the examiner must be mindful that the proximate cause of a Veteran's additional disability need not be completely unforeseeable or unimaginable. Instead, it must be one that a reasonable healthcare provider would not have considered to be an ordinary risk of the treatment provided. The examiner's report must reflect consideration of the Veteran's entire documented medical history and assertions and all lay evidence. It may also be particularly helpful for the examiner to review the Veteran's September 2011 and January 2021 hearing transcripts and read the summary provided in the May 2021 Board remand. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. (Continued on the next page) 2. After completing all indicated development, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kipper, 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.