Citation Nr: 21070993 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 16-18 599 DATE: November 29, 2021 THE ISSUES 1. Entitlement to compensation under 38 U.S.C. § 1151 for a heart disability, due to treatment at a VA facility from February 14 to February 15, 2012. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). 3. Entitlement to special monthly compensation (SMC) based on need for aid and attendance. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for a heart disability, due to treatment at a VA facility from February 14 to February 15, 2012, is remanded. Entitlement to a TDIU is remanded. Entitlement to SMC based on need for aid and attendance is remanded. REASONS FOR REMAND The Veteran had active service from April 1972 to April 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran testified at a hearing before the undersigned Veterans Law Judge in a March 2020 videoconference hearing sitting in San Diego, California. A transcript of that hearing is of record. These matters were last before the Board in August 2020, at which time they were remanded for further development. Unfortunately, these matters must be remanded once more to the RO for further development before a decision may be made on the merits. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required). 1. Entitlement to compensation under 38 U.S.C. § 1151 for a heart disability, due to treatment at a VA facility from February 14 to February 15, 2012, is remanded. Under 38 U.S.C. § 1151, if VA hospitalization or medical or surgical treatment results in additional disability or death that is not the result of the claimant's own willful misconduct or failure to follow instructions, compensation may be awarded in the same manner as if the additional disability or death were service connected. See 38 C.F.R. § 3.361. In order to constitute a qualifying additional disability, the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment, or examination, or (2) an event not reasonably foreseeable. 38 C.F.R. § 3.361 (a). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361 (c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361 (c)(2). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability, it must be shown that the hospital care or medical or surgical treatment caused that disability; and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. In evaluating the Veteran's claim, the Board first must consider whether the evidentiary record shows that he has additional disability that was caused by negligent VA medical treatment. See 38 U.S.C. § 1151 (a)(1). The medical evidence of record shows that the Veteran was treated at the VAMC in San Diego, California on February 14 and 15, 2012. The record shows that during that time he underwent a right shoulder rotator cuff surgery. Shortly after undergoing surgery, the Veteran was found to have interval progression of the previously seen reversible defect now involving the inferior/inferolateral wall of the ventricular myocardium. See April 2012 VA treatment note. The Veteran currently has diagnoses of a heart disability. The Veteran contends that his current heart disability symptoms are due to negligence of the VA facility in their care and in their maintenance of the facility. The Veteran further contends that he had no heart disability symptoms prior to entering the VA treatment facility. In support of his claim, the Veteran submitted a private medical opinion written by Dr. L.D. and dated June 2019. In his opinion Dr. L.D. noted that Veteran's: "additional/aggravated heart condition was first noted on February 14, 2012 with complaints of shortness of breath, sweating and chest pains while in postsurgical VA care. These complaints lasted for several hours and finally tapered off with the removal of the misused and/or malfunctioning Flowtron controller and the two DVT leg prophylactics sleeves. The record shows that no additional cardiovascular agents were administered after the Flowtron devices were remove[d] and that his vitals rapidly returned to normal range within minutes thereafter. In the absen[ce] of other documented stressor it is my opinion that it is more like[ly] than not the Flowtron device[s] were the culprit resulting in harmful systemic stress to [the Veteran's] circulatory system... I have reviewed and evaluated [the Veteran's] VA medical records while giving due consideration to his consistent recorded complaints, cardiac markers, convoluted with a host of continuing symptomology documented in these records, it is my opinion that it is more likely than not that his current CHD had its onset during this post-surgical care the VA medical center on February 14 and 15, 2012." However, the Board found in the previous August 2020 decision, that there was no competent medical nexus opinion of record to establish causation between the Veteran's additional disabilities and potentially negligent VA treatment or maintenance of medical equipment, or that it was an outcome that was not reasonably foreseeable. Additionally, the Veteran identified potentially relevant and outstanding private treatment records in a July 2013 Statement in Support of Claim. Finally, at the March 2020 Board hearing, the Veteran indicated that potentially relevant VA inpatient records were not associated with the claims file. Therefore, the Board remanded the matter so that the RO could make an attempt to obtain the potentially relevant and outstanding medical treatment records. Based on the foregoing, the Board found in the August 2020 decision that the Veteran had produced evidence sufficient to establish an "indication" that he suffers from such disabilities as a result of VA care. See 38 C.F.R. § 3.159 (c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006); Trafter v. Shinseki, 26 Vet. App. 267, 278-80 (2013) (applying VA's duty to obtain a medical opinion under 38 U.S.C. § 5103A (d) and McLendon to claims under 38 U.S.C. § 1151). As such, the Board remanded the matter to obtain a medical opinion in conjunction with his 38 U.S.C. § 1151 claim. The Board asked for a "qualified medical professional competent to provide an opinion on the etiology of a heart disability." The examiner was also explicitly asked to address the June 2019 private medical opinion and reconcile any findings with that opinion, if necessary. Upon remand, VA obtained the Veteran's treatment notes from the period in question. Additionally, he was provided a medical opinion in January 2021. The examiner indicated was it was less likely than not that the claimed heart disability was caused by or became worse as a result of the VA treatment at issue, and explained that "the care that I reviewed appears to be within my understanding of the standard of care." When asked to address the June 2019 private medical opinion, the examiner merely restated the above, and wrote "I am not a cardiologist." When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). It is unclear whether the examiner has the requisite expertise to offer an opinion on the matter. The Board, therefore, finds that a remand is necessary in order to afford the Veteran a new medical opinion, provided by a medical professional with the requisite expertise, and which will adequately address the June 2019 private medical opinion. Stegall, 11 Vet. App. at 271. 2. Entitlement to a TDIU is remanded. 3. Entitlement to SMC based on need for aid and attendance is remanded. The Board recognizes that the Appellant's entitlement claims for SMC based on the need for regular aid and attendance and a TDIU are inextricably intertwined with the claim for entitlement to service connection for a heart disability. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Because the Appellant's claims are inextricably intertwined, the AOJ and Board cannot resolve one claim without consideration of the other. As such, the Board must also remand the Appellant's claims for SMC based on the need for regular aid and attendance and entitlement to a TDIU to the AOJ for adjudication. The matters are REMANDED for the following action: 1. Forward the record and a copy of this Remand to a qualified medical professional competent to provide an opinion on the etiology of a heart disability, preferably a cardiologist. The examiner must opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's currently diagnosed heart disability was caused by his VA care. The examiner must provide rationale and explanation for any conclusion reached. If the clinician finds in the affirmative, then an opinion must be provided as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the additional disability was (1) due to carelessness, accident, negligence, lack of proper skill, error in judgment, or similar instances of fault by VA in providing treatment to the Veteran, OR (2) whether the additional disability was not reasonably foreseeable in relation to receiving treatment and why. The term "at least as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of that conclusion as it is to find against it. If necessary, the examiner should reconcile any findings with the June 2019 private medical opinion, which found the Veteran's "additional/aggravated heart condition was the result of a "misused and/or malfunctioning Flowtron controller and the two DVT leg prophylactics sleeves." The examiner is asked to address the June 2019 private physician's determination that the Veteran's "current CHD had its onset during his post-surgical care at the VA medical center on February 14 and 15, 2012." 2. Thereafter, readjudicate the issues on appeal. If any benefit sought is not granted, issue a supplemental statement (SSOC) of the case and afford the Veteran and his representative an appropriate opportunity to respond. The case should then be returned to the Board. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, Associate 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.