Citation Nr: 21074413 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-06 509 DATE: December 15, 2021 REMANDED The issue of entitlement to compensation under 38 U.S.C. § 1151 for sensory neuropathy, right femoral nerve, secondary to VA treatment provided in January 2012, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1962 to February 1965. In February 2019, the Veteran and his spouse testified at a videoconference hearing before a Veterans Law Judge (VLJ). In June 2019, the Board remanded the issue on appeal for additional development. In May 2021, the Board sent the Veteran a letter informing him that the VLJ who conducted his hearing is no longer available. The Veteran was invited to request another Board hearing. While the Board has been unable to identify a response following this letter, it notes that an additional VA Form 9 was submitted in February 2021, following a January 2021 Supplemental Statement of the Case (SSOC). In the February 2021 VA Form 9, signed by the Veteran's representative, a videoconference hearing is requested with the notation: "We want another hearing." A hearing was held in November 2021, before the undersigned VLJ, and the Veteran and his spouse provided testimony under oath. Accordingly, the Board finds that the Veteran's request for a second hearing has been satisfied and proceeds with the below development. Entitlement to compensation under 38 U.S.C. § 1151. The Board finds that additional development is needed prior to final adjudication of the issue on appeal. Specifically, the Board finds that a new VA opinion is needed. The Board acknowledges the January 2021 VA opinion, but seeks clarification of the following. The opinion states: "Damage to both the femoral nerve as well as the femoral artery are well established to be complications of cardiac catheterization in the medical literature." The opinion then sites to the following web address: https://www.ncbi.nlm.nih.gov/books/NBK531461/ The Board has reviewed this link and does not see femoral nerve damage listed under the complications for cardiac catheterization. The only reference the Board found to neurological complications was under atheroembolism, where it states: "Cholesterol emboli from friable vascular plaques can give rise to distal embolization in multiple vascular beds. These are usually recognized by digital discoloration (blue toes), livedo reticularis. This can also manifest as a neurological squeal or renal impairment." The Board seeks clarification upon remand. Further, the Board seeks clarification of the following regarding foreseeability. The Board has reviewed the January 2021 VA opinion, but finds it to be inadequate for the following reasons. First, as mentioned above, it states: "Damage to both the femoral nerve as well as the femoral artery are well established to be complications of cardiac catheterization in the medical literature." The opinion also states: "In summary, the initial procedure during which the apparent nerve damage occurred was a well indicated procedure (as further indicated by the CAD noted on the angiogram), the subsequent complication is well-established in the medical literature, and a potentially symptom improving procedure several years later was declined." (Emphasis added). However, the opinion then states: Consequently, there are no grounds to suggest that the condition was caused by, or became worse due to VA treatment, that additional disability resulted from carelessness, negligence, lack of skill, etc., or additional disability resulted from an event that could have been for seen by reasonable health care provider, where there is failure on the part of the VA to treat the claim disease or allowed it to progress. (Emphasis added). The Board seeks clarification of the above. First, the Board seeks clarification that the "additional disability" referenced in the last paragraph is the sensory neuropathy, right femoral nerve. The Board notes that the examiner first uses the term "the condition" and then "additional disability." However, if the "additional disability" is the sensory neuropathy, right femoral nerve, then the Board seeks clarification as to whether the proximate cause of the sensory neuropathy, right femoral nerve was an event not reasonably foreseeable. The first two quotations from the opinion rationale, suggest to the Board that nerve damage is reasonably foreseeable. However, the emphasized statement in the final paragraph creates ambiguity. The Board acknowledges that reasonable doubt is to be resolved in favor of the Veteran. 38 C.F.R. § 3.102. However, even if the Board were to assume that the "additional disability" referenced is the sensory neuropathy, right femoral nerve, the rationale of the opinion does not support a conclusion that this event was not reasonably foreseeable. As the rationale for the conclusion is inadequate, remand for a new opinion is appropriate. Finally, as the Board is remanding this matter, it notes that at the February 2019 hearing, the Veteran's representative referenced an article from the National Institute of Medicine. Upon remand, he is invited to submit this and any other relevant evidence for consideration. The matter is REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issue on appeal. Further, the Board notes that at the February 2019 hearing, the Veteran's representative referenced an article from the National Institute of Medicine. Upon remand, he is invited to submit this and any other relevant evidence for consideration. All efforts should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, obtain an opinion from a new examiner to address the following. An examiner is asked to address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the diagnosed sensory neuropathy, right femoral nerve is: (a) an additional disability; and (b) the result of VA hospital care, medical or surgical treatment, or examination. The Board notes that "[m]erely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability . . . does not establish cause." 38 C.F.R. § 3.361 (c)(1). Further, the examiner is asked to address whether it is at least as likely as not 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 the Veteran's additional disability. In doing so, the examiner is asked to address whether it is at least as likely as not that (a) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (b) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent. Finally, the examiner is asked to address whether it is at least as likely as not that the proximate cause of the Veteran's additional disability was an event not reasonably foreseeable. The examiner is reminded that: "Whether the proximate cause of a veteran's additional disability . . . was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 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. 38 C.F.R. § 3.361 (d)(2). In addressing the above, the examiner is asked to consider the following: (a) The statement in the January 2021 VA opinion that "Damage to both the femoral nerve as well as the femoral artery are well established to be complications of cardiac catheterization in the medical literature." The opinion then sites to the following web address: https://www.ncbi.nlm.nih.gov/books/NBK531461/ The Board has reviewed this link and does not see femoral nerve damage listed under the complications for cardiac catheterization. The only reference the Board found to neurological complications was under atheroembolism, where it states: "Cholesterol emboli from friable vascular plaques can give rise to distal embolization in multiple vascular beds. These are usually recognized by digital discoloration (blue toes), livedo reticularis. This can also manifest as a neurological squeal or renal impairment." The Board seeks clarification upon remand. (b) At the February 2019 Board hearing, the Veteran's representative asked that an examiner address the following. The representative asked if it was reasonable to order a second stress test when the Veteran "already had one not two weeks before, and the heart readings were normal, and they did not come back and say, we have additional symptoms, we have problems? Was it reasonable to do that?" The representative also referred to a previous procedure, including placement of a stent. The Board asks that an examiner address whether it was reasonable to perform the January 2012 procedure, if the Veteran already had a stent placed. The VA examiner should be given access to the claim file. The examiner should state that a review of the claim file was completed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided. 3. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals 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.