Citation Nr: 21070066 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 19-35 351 DATE: November 22, 2021 REMANDED Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional disability to a left wrist condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1961 to July 1963. 1. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional disability to a left wrist condition is remanded. The Veteran's claim was previously remanded by the Board in April 2019 and January 2021 for further development, to include acquiring addendum opinions addressing whether the Veteran's VA care with regards to his left wrist, in 2015, was inadequate and caused his current left writ deformity/condition. The Board finds, however, that the VA examination and opinion obtained by the RO since the last remand did not substantially comply with explicit directives set out by the Board, and as such, remand is again required. Stegall v. West,11 Vet. App. 268, 271(1998). The Veteran's claim was last remanded to obtain an addendum opinion and rationale regarding the Veteran's left wrist condition and the level of care and/or treatment that was provided by the VA after his fracture in 2015. As context, the Veteran contends that he now has a physical deformity to his left wrist and suffers pain as a result of medical care rendered at a VA emergency room in June 2015, following a motorcycle accident. Specifically, the Veteran's claims that surgery for his wrist was required as part of treatment after his fracture, and that as a result of the lack of surgical intervention, he suffered deformity and continued pain/ limitation of movement of the wrist. As part of the last remand, the RO was directed to obtain an opinion that explicitly spoke to both the need for surgical intervention and the Veteran's documented complaints of increased pain and deformity in his left wrist directly after his treatment. The Board finds, however, that a close review of the February 2021 VA addendum opinion, obtained by the RO, reveals that the VA examiner completely ignored such directive and only qualified the Veteran's post-treatment complaints by noting "lay statements noted". The Board finds that such notation is insufficient in addressing the Veteran's lay contentions, especially in light of the fact that such complaints were explicitly recorded in the Veteran's treatment records several times after his initial treatment for his left wrist. The Board notes that a remand by the Board confers on the Veteran the right to compliance with the terms of that remand. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, as the February 2021 VA opinion fails to substantially comply with the last remand directive, another remand is required for the VA to fulfill its duty to the Veteran. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate medical professional, who has not previously provided an opinion in this matter, for an independent medical opinion under 38 U.S.C. §5109, in connection with the § 1151 claim. If the questions cannot be answered without a physical examination, then one should be conducted (or telehealth interview, review of the record, etc. if an in-person examination is not feasible). The examiner is asked to address each of the following: First, identify any additional disability resulting from medical treatment on or about June 3, 2015 by comparing the Veteran's condition immediately before the treatment and afterwards. This includes any further treatment during the recovery period. The examiner should address whether there was any additional disability resulting from not having surgery on his fractured left wrist. In this regard the examiner must address the resulting deformity and continued pain and limitation of motion remaining in the Veterans left wrist, and explicitly explain why such conditions are, or are not considered additional disability. If the examiner finds that such conditions are not additional disabilities, the examiner must expressly address why such condition resulting from the treatment, is the expect result from the accident and subsequent treatment, and why any surgical intervention would not have prevented the residual disability. Second, if additional disability is found, provide an opinion as to whether any such additional disability was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination, to include consideration of whether any disability was caused by negligent nursing care after the treatment. The examiner should include whether the Veteran presented as high risk for the potential wrist surgery and whether it should have been performed. Third, if additional disability is found, provide an opinion as to whether any such additional disability was an event not reasonably foreseeable. That is, was the event the type of risk that a reasonable health care provider would have disclosed in connection with informed consent procedures. Consideration should be given to the Veteran's medical history of having a "dead nerve in his left forearm" causing decreased range of motion and strength prior to the left wrist fracture. Additionally, explicit consideration must be given to the Veteran's lay statements that after treatment, he was "far from his baseline with functionality prior to the fracture" and that the attending resident did not follow up with him after treatment. To this end, the examiner must explicitly note consideration of the noted claims of increased pain and disability after treatment, and address why such lay subjective complaints do not constitute a residual disability in which disability may attach. If the reviewing clinician cannot provide the requested opinion without resorting to speculation, it must be so stated, and he or she must provide the reasons why an opinion would require speculation DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, 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.