Citation Nr: 21068107 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 16-42 285 DATE: November 9, 2021 REMANDED Entitlement to VA benefits under 38 U.S.C. §1151 for decubitus ulcers (bedsores) as a result of treatment rendered at the VA Medical Center in Houston, Texas from February 2014 to July 2016, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1978 to July 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2015 by the Department of Veterans Affairs (VA) Regional Office in Houston, Texas. The Veteran testified before a Veterans Law Judge (VLJ) at a Board hearing held in February 2019. A transcript of that hearing has been associated with the record. As noted by the Board in a previous remand, the VLJ who presided over that hearing is no longer with the Board and the Veteran has declined a second hearing in his appeal. This appeal was previously before the Board in June 2019, at which time it was remanded for additional development. In April 2021, it returned to the Board and was again remanded to obtain an adequate medical opinion regarding the Veteran's claim. Unfortunately, for the reasons below, the Board finds that another remand is necessary. Following the April 2021 remand, which found that an April 2020 medical opinion was inadequate for the purposes of deciding the appeal, the Board remanded the claim for a new medical opinion to address the Veteran's contentions. The claim was then returned to the agency of original jurisdiction (AOJ) to obtain such. An opinion was authored by a VA clinician in July 2021; however, for the reasons below, the Board finds that it is wholly inadequate for the purposes of deciding the Veteran's claim. In that report, in response to the Board's multiple detailed instructions and questions, the VA clinician merely indicated that she was "unable to determine without speculation due to records noting 3/5/2014 'No wounds, pressure ulcers or other skin problems. The pressure ulcer protocol was continued.'" This response was repeated, verbatim, 14 times in the July 2021 opinion, in response to every question posited by the Board, without any rationale or explanation. The clinician was asked to specifically address certain aspects of the Veteran's claim, and to address medical literature describing pressure ulcers and spinal cord injuries. Instead of doing so, she merely copied and pasted the exact same response to every one of the Board's questions and instructions. In September 2021, the AOJ found that the clinician's answers were not responsive to the Board's instructions and requested an addendum opinion in which the clinician could offer responses, with rationale and explanation as to her findings. Unfortunately, in response the July 2021 clinician submitted an addendum which merely contained another verbatim repetition of her copied-and-pasted non-response to the July 2021 questions. Although an additional remand is not the outcome the Board anticipated for this claim, considering the claim's nature and age, it finds that an additional remand is absolutely necessary in light of the non-responsive answers offered by the July 2021 clinician, both initially and in her addendum request. VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). It has not yet fulfilled that duty in this case, which is remanded to allow for fulfillment of that duty. The matters are REMANDED for the following action: Provide the Veteran's file to an appropriate VA clinician other than the one who authored the July 2021 VA examination report. The entire file, including a copy of this remand, should be made available to and be reviewed by the examiner in conjunction with this request. The need for physical examination is left to the discretion of the medical professional offering the addendum opinion. Thereafter, the examiner is asked to specifically address the following matters: a) whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's decubitus ulcers and resulting complications were due to carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA administering treatment? To show fault, it must be shown that VA failed to exercise the degree of care that would normally be expected of a reasonable health care provider, or that VA furnished such care without the Veteran's informed consent. 38 C.F.R. § 3.361 (d)(2). In addressing this question, the clinician must consider and discuss whether the VA acted reasonably in deciding to discontinue the pressure ulcer prevention protocol in late-March and early-April 2014 despite contemporaneous evidence that he was at "high" and "moderate" risk for pressure sores. The requested opinion must also consider and be reconciled with the medical literature indicating that bedsores are mostly avoidable and often arise due to quality-of-care issues (Erwin A. Kruger et al., Comprehensive management of pressure ulcers in spinal cord injury: Current concepts and future trends, The Journal of Spinal Cord Medicine, 572-585 (Nov. 2013) (available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3831318/)). b) If the Veteran's bedsores were the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, was the disability at least as likely as not the result of an event that was not reasonably foreseeable? Essentially, the Board is asking if a reasonable health care provider would have considered the bedsores to be an ordinary risk of the Veteran's treatment regimen in March 2014 and April 2014. In addressing this question, the examiner is asked to specifically address the VA medical professionals' choice to discontinue the pressure ulcer prevention protocol in late March and early April 2014, despite contemporaneous evidence that the Veteran was at "high" and "moderate" risk for pressure sores. The clinician must provide a complete rationale for all opinions rendered. The clinician should specifically discuss the pertinent evidence of record, to include the Veteran's assertions. If the clinician finds that he or she cannot provide any opinion without resorting to speculation, they must explain why they are unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.