Citation Nr: 21069177 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 15-23 159A DATE: November 17, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a right foot open reduction with internal fixation (ORIF) procedure is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1960 to February 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA). This case was remanded in June 2020 for further development. In June 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a right foot ORIF procedure. The Veteran asserts that he is unable to walk properly, and his right foot has additional disability due to an ORIF procedure undergone in December 2011 at a VA hospital. See, e.g., May 2013 VA Form 21-4142. He also asserts that VA's failure to treat his infection in a timely manner caused the disability and that VA should not have put his foot in a cast because he had diabetes mellitus. See June 2018 Board hearing. Lastly, he asserts that he did not have informed consent. See May 2020 appellant brief. In December 2011, the Veteran underwent an ORIF procedure for his right foot after he tripped and fractured his foot in November 2011. See November 2011 and December 2011 VA treatment records. In January 2012, VA treatment records reflect that the Veteran had been walking with a cast despite orders not to do so and his foot was infected. He thereafter had two screws removed. See January 2012 VA treatment records. The Veteran is currently diagnosed with Charcot foot and a diabetic ulcer, see, e.g., August 2021 VA examination, both of which pre-dated the December 2011 surgery. See November 2011 VA treatment records (diagnosing Charcot foot); see, e.g., October 2003 VA treatment records (discussing ulcer on right foot). Thus, a threshold question in this case is whether there is any additional disability after the ORIF surgery to service connect at all. In the Board's June 2020 remand, it discussed that pain with functional impairment can be a disability for VA purposes and specifically requested that a VA examiner discuss an April 2013 VA treatment record noting a right foot deformity due to trauma "and previous surgery." The examiner did not discuss the April 2013 VA treatment record. Moreover, instead of discussing any deformity and whether there is a separate deformity other than the Charcot foot, the examiner merely stated that the Veteran's pain is from his Charcot foot. Because the examiner did not substantially comply with the Board's remand directive or discuss adequately whether there is a separate foot disability from the Charcot foot, remand for a new examination is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from August 2021 to the present. 2. After the above development is completed, the AOJ should arrange for a VA examination to determine the nature and likely cause of any right foot disability that is due to VA treatment. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) The examiner should opine on whether there is any additional right foot disability present after the Veteran's December 2011 ORIF procedure. If so, please diagnose or explain the additional disability. To determine whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care which the claim is based, to the Veteran's condition after such care, treatment, examination, services, or program has stopped. Pain with functional impairment is considered a disability for VA purposes. The examiner must discuss April 2013 VA treatment records reflecting a right foot deformity due to trauma "and previous surgery." The examiner must discuss and explain whether there is a deformity or functional impairment (such as difficulty walking) that is separate or can be distinguished from the Veteran's Charcot foot or diabetic ulcer. (b.) Only if there is a disability or functional impairment separate from Charcot foot or a diabetic ulcer, is it at least as likely as not (50% or greater probability) that such disability is a result or consequence of VA care (specifically, the ORIF surgery or any resulting infection), regardless of VA fault? Please explain why. (c.) Only if there is a disability or functional impairment separate from Charcot foot or a diabetic ulcer, is such disability caused by the Veteran's failure to follow properly given medical instructions, to include walking while wearing a cast after the ORIF surgery? Please explain why. (d.) Only if there is a disability or functional impairment separate from Charcot foot or a diabetic ulcer, was such disability or functional impairment due to (i) 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 (ii) an event not reasonably foreseeable? Please explain why. To establish that the cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, it must be shown that either (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the care, treatment, or examination without the Veteran's informed consent. "An event not reasonably foreseeable" cannot be an ordinary risk, i.e., it must have been the type of risk that would not have been disclosed in informed consent procedures. The examiner must discuss whether VA failed to timely treat the Veteran's infection after the ORIF procedure and whether VA should have put a cast on the Veteran despite his diabetes. 3. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, 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.