Citation Nr: 21069701 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-19 881 DATE: November 19, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for additional disabilities due to VA surgical treatment on March 27, 2014, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1970 to July 1974 as well as during August 1977. This matter comes before the Board of Veterans' Appeals (Board) from a February 2016 rating decision. In August 2021, the Veteran and his spouse testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. Entitlement to compensation under 38 U.S.C. § 1151 for additional disabilities due to VA surgical treatment on March 27, 2014, is remanded. In written statements of record as well as during the August 2021 Board hearing, the Veteran has asserted that he suffers from multiple additional disabilities as a result of VA surgical treatment, a left inguinal hernia repair with mesh, on March 27, 2014. He has reported that VA treatment records showed that he was not given antibiotics prior to or after surgery. He further indicated that his submitted treatise evidence showed he qualified as a patient with a higher risk of getting infections due to his age, diagnosed diabetes, the installation of a foreign body (mesh), and the length of his surgery. He also reported that he had been given antibiotics before multiple previous surgeries and did not have any pain or swelling at his post-surgical site in the days before he was found unresponsive and taken to the hospital in April 2014. Finally, the Veteran's representative highlighted that the December 2015 VA medical opinion came from the same VAMC where the Veteran's surgery was conducted and could be a potential conflict of interest. As an initial matter, the Veteran is currently receiving VA medical treatment for his claimed additional disabilities from Salisbury VAMC. As evidence of record only includes treatment records dated up to May 2016 from that facility, all pertinent VA treatment records should be obtained and properly associated with the record. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran reported that he was treated at multiple facilities after his VA surgery in March 2014, to include Novant Health Forsyth Medical Center and Whitaker Rehab from April 2014 to June 2014. Evidence of record also showed that he had received private medical treatment for some of his claimed additional disabilities, such as nerve damage and myopathy, from a private physician identified as A. R., M. D. at Salem Neurological Center from July 2014 to the present. As evidence of record only includes a sampling of records from those providers, any additional identified private treatment records should be obtained and associated with the record. In the December 2015 VA medical opinion, the examiner found that Veteran definitely developed complications secondary to the procedure performed at Salisbury VAMC. It was noted that although the Veteran developed surgical complications, these were not due to failure to exercise excellent care, not due to furnishing care without informed consent, or due to an event not reasonably foreseeable. The examiner found that the Veteran was treated with standard of care, and although it was a difficult surgery, it was not complicated. The examiner found that there were not complications during the surgery that could alert for the tragic series of events that followed. It was further indicated that prophylactic antibiotics were not universally recommended, and the fact that it was not administered did not put the surgeon at fault. The examiner continually referenced the March 2014 VAMC discharge instructions that noted the Veteran should call with increased pain, fever, redness of incision, or increased drainage. She further highlighted the private hospital admission records dated in April 2014 showed the Veteran presented to the emergency room after three days of altered level of consciousness and increased lethargy, noting the fact that the Veteran waited three days before seeking medical attention after signs of problems was likely the reason of the severity of complication. The examiner noted that it was likely that the Veteran would develop infection, likely contained, uncomplicated, and treatable with short inpatient course; but the severity of the infection was likely caused due to the waiting period since onset of the symptoms and seeking medical attention. The Board finds that the December 2015 VA medical opinion is inadequate, as the examiner did not fully consider the Veteran's contentions regarding use of antibiotics and severity of post-surgical symptoms, repeatedly used speculative language, and provided little rationale for her conclusions, instead simply directed attention to documents in the record. Based on the foregoing as well as the Veteran's assertions of a potential conflict of interest, the AOJ should obtain an advisory medical opinion to clarify whether the proximate cause of the Veteran's claimed additional disabilities due to VA surgical treatment in March 2014 were due to negligence or an event not reasonably foreseeable. The Board has determined that the issue under consideration poses a medical problem of such complexity that an advisory opinion from an independent medical expert is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. Therefore, the AOJ should follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic on remand. The matter is REMANDED for the following actions: 1. Obtain updated treatment records pertaining to the Veteran's claimed additional disabilities from Salisbury VAMC for the time period from May 2016 to the present and associate them with the record. 2. With any necessary assistance from the Veteran, obtain any records dated from March 2014 to the present from A. R., M. D. at Salem Neurological Center as well as from April 2014 to the present from Novant Health -Forsyth Medical Center and Whitaker Rehab. If the records from any provider are unavailable after two requests and further attempts to obtain those records would be futile, enter a formal finding of unavailability and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 3. Thereafter, the Veteran must be afforded an advisory medical opinion by an appropriate independent medical expert (preferably an internal medicine specialist) to clarify the proximate cause of the claimed additional disabilities due to VA surgical treatment in March 2014. The electronic claims file must be made available to the expert, and the expert must specify in the advisory opinion that the file has been reviewed. The AOJ should follow the established procedures for requesting an advisory opinion pursuant to 38 U.S.C. § 5109. Based on a review of the evidence of record and with consideration of the Veteran's lay assertions, the examiner must provide an opinion addressing whether any identified additional disability (claimed as sepsis, gangrene, neck pain, nerve damage of the upper lip, vocal cord and airway damage, loss of taste, facial numbness, scalp hematoma, bilateral foot, hand, arm, and left leg numbness, left hand and foot cramps, loss of bladder control, loss of balance, loss of strength of bilateral arms and legs, loss of left testicle, erectile dysfunction, myopathy, and sleep problems) was due to the hernia repair surgical procedure performed at Salisbury VAMC on March 27, 2014. If so, (1) was the additional disability proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA in treating the Veteran in March 2014; and if so, did VA fail to exercise the degree of care that would be expected of a reasonable health care provider OR did VA furnish treatment in March 2014 without the Veteran's informed consent? OR (2) was the additional disability proximately caused by an event not reasonably foreseeable? (The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32.) In doing so, the examiner should extensively review and discuss the VA and private treatment records dated from March 2014 to the present; the May 2015 VA physician letter; the May 2015 and August 2015 DBQ reports as well as the July 2021 statement from A. R., M. D.; the December 2015 VA medical opinion; and all treatise evidence submitted by the Veteran. The examiner should also specifically discuss VA surgical treatment records detailing that the Veteran was given no antibiotics prior to or after surgery as well as his assertions in conjunction with submitted treatise evidence that he qualified as a patient with a higher risk of getting infections due to his age, diagnosed diabetes, the installation of a foreign body (mesh), and the length of his surgery. Rationale for all requested opinions shall be provided. If the expert cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the expert shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. After completing the above actions and any other necessary development, the claim on appeal must be re-adjudicated, taking into consideration all relevant evidence associated with the evidence of record since the March 2017 SOC. If the benefit on appeal remains denied, a SSOC must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. D. Deane, 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.