Citation Nr: 21073353 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 18-39 429 DATE: December 8, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for an L4 nerve root injury resulting from a back injections procedure is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran honorably served in the Army from February 1982 to February 1985. This matter is before the Board of Veterans' Appeals (Board) from a March 2018 rating decision. The Veteran attended a Board hearing in August 2021 before the undersigned Veterans Law Judge and a transcript is of record. The Veteran testified that a June 2017 back injections procedure at VAMC Providence caused additional disability in the form of left leg nerve damage, back pain, and left leg pain due to the carelessness, negligence, lack of skill or similar incident of fault on the part of the attending VA medical personnel. Medical opinions were obtained in 2018 from VAMC Boston staff physicians regarding the Veteran's 38 U.S.C. § 1151. Additional disabilities of back pain and left leg pain were conceded as due to neurological complications from the June 2017 back injections procedure. However, no deviation from the appropriate standard care was found by any VA medical personnel involved in the procedure and the resulting post-surgical complications were noted to be reasonably foreseeablealbeit rarerisks of the back injections procedure that the Veteran was warned about. During a June 2018 Informal Conference Hearing, the Veteran, through his representative, requested that a medical opinion be obtained from an independent examiner noting the inherent bias of VA medical personnel in offering an opinion on this issue. To alleviate these concerns, the Board will remand this matter from a medical opinion from a qualified contract examiner. Further, the claim for a TDIU must also be remanded until the below development is resolved because it is inextricably intertwined with the 38 U.S.C. § 1151 claim on appeal. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). The matters are REMANDED for the following action: 1. Obtain all outstanding VA and private treatment records. 2. Forward the claims file to a contract physician to address the following: (a.) The Board concedes, consistent with the February 2018 addendum opinion, that the Veteran's back disability with left leg pain was worsened by the VA treatment at issue. (b.) Is it at least as likely as not (50 percent or greater probability) that the additional disability is the result of is it due to carelessness, negligence, lack of proper skill, error in judgment, other instance of fault on the part of the VA prior to and in furnishing treatment? * The examiner is advised that to establish carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing treatment, it must be shown that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. (c.) Is it at least as likely as not (50 percent or greater probability) that the additional disability is the result of an event not reasonably foreseeable? * The examiner is instructed that the term "event not reasonably foreseeable" means whether a reasonable health care provider would have foreseen the event. 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. Please provide a complete rationale for all requested opinions. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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.