Citation Nr: 21067967 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 17-14 495 DATE: November 8, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for additional disability resulting from a VA health examination is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1987 to May 1990. The issue of entitlement to vertigo-like symptoms was included in the Veteran's September 2020 VA Form 9 substantive appeal and certified to the Board. Because the AOJ, after remand, granted service connection for vertigo in an August 2021 Rating Decision, it was not returned to the Board for adjudication. Thus, the sole issue at bar is entitlement to compensation under 38 U.S.C. § 1151 Entitlement to compensation under 38 U.S.C. § 1151 for additional disability resulting from a VA health examination is remanded. This appeal was remanded by the Board in July 2019. While the Board regrets further delay of this appeal, there has not been substantial compliance with the prior Board remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the examiner did not answer the questions posed in the remand directives. The directives focused on whether the Veteran's disability was the result of negligence on the part of VHA staff, or an event that the Veteran could not have reasonably foreseen when she consented to the procedure. If the examiner could not answer both questions, the AOJ was to refer the issue for another in-person examination to evaluate whether the injury was caused by negligent care. In this case, rather than provide such an analysis, the examiner opined as to whether the record demonstrated an additional injury. The examiner noted that she was unable to find any records on the breast injury, which may have frustrated her ability to determine any fault on the part of VA. However, as directed by the July 2021 Remand, the examiner was to "review all evidence of record, as well as the Veteran's own lay assertions." Treatment notes, to include records dated May 2014, June 2014, and June 2015, indicate left breast tenderness and nipple discharge. Moreover, the examiner's response does not indicate that she noted the Veteran's statements and photographic evidence recounting how the injury occurred. Any examination report obtained on remand should mention such statements from the Veteran. The matters are REMANDED for the following action: 1. Add all outstanding VA treatment records not currently associated with the Veteran's claims file. 2. Obtain a VA addendum opinion from the same clinician who conducted her May 2021 C&P examination, to assess the potential cause of the Veteran's breast injury. The examiner should review all evidence of record, as well as the Veteran's own lay assertions regarding her left breast injury symptoms. Such symptoms include, but are not limited to, nerve damage, nipple discharge, and hematomas. The examiner should then state whether it is at least as likely as not that the proximate cause of the Veteran's breast injury was (a) 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, or examination; or (b) an event not reasonably foreseeable by the Veteran when she provided informed consent for the mammogram. The opinion should answer both components (a) and (b) of the question posed in the previous paragraph, and provide adequate discussion of the facts in evidence as well as known medical principles to support the conclusion. Specifically, the opinion should assess the plausibility, from a medical standpoint, of the Veteran's lay assertions of nerve damage, nipple discharge and hematomas, as well as any other statements from the Veteran. as to how the injury occurred. 3. If, and only if, both questions (a) and (b) cannot be answered without another examination, then schedule the Veteran for an in-person examination with an appropriate examiner to assess the causation-related questions posed in the previous directive. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Maskatia