Citation Nr: 21077109 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-28 626 DATE: December 28, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a left foot Lapidus bunionectomy. REASONS FOR REMAND The Veteran served on active duty from February 1964 to February 1967. A virtual hearing was held before the undersigned Veterans Law Judge in November 2021. This remand is being made under the "one-touch" program. A transcript of the hearing will be associated with the claims file at a later time. Entitlement to compensation under 38 U.S.C. § 1151 In April 2015, VA denied entitlement to compensation under § 1151 for a left foot bunion surgery. The Veteran disagreed with the decision and perfected this appeal. Section 1151 provides that compensation for a qualifying additional disability of a veteran will be awarded in the same manner as if it were service connected. 38 U.S.C. § 1151(a). As relevant to this case, a qualifying additional disability is one that is not the result of the veteran's willful misconduct and was caused by hospital care, medical or surgical treatment, or examination by a Department of Veterans Affairs employee or in a Department facility, and the proximate cause of the disability was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care; or (B) an event not reasonably foreseeable. Id. "Section 1151 thus contains two causation elements:" that the additional disability be actually caused by VA's medical care and that it be proximally caused by VA's fault or an unforeseen event. Viegas v. Shinseki, 705 F.3d 1374, 1377 78 (Fed. Cir. 2013). Medical evidence shows that the Veteran underwent a left foot Lapidus bunionectomy with screw fixation and plate fixation at a VA facility on March 27, 2013. She contends that her left foot condition is much worse than it was before surgery and that she was not informed that additional disability was a possibility. A June 2014 VA podiatry consult notes the Veteran's complaints of continued pain. X-rays of the left foot showed a shortened left 1st metatarsal with fusion of the 1st met-cuneiform joint with dorso medial bone plate. Assessment was foot deformities. A November 2014 podiatry record notes the Veteran's report that her walking has changed since the bunion surgery and she is unable to walk or stand for prolonged periods. The podiatrist explained that there is no surgery to improve her condition and that any more surgery will only worsen her foot condition. A December 2015 podiatry note indicates the Veteran has had persistent pain since the left foot surgery. The podiatrist noted chronic post-operative pain of the left foot with post-operative dorsiflexory abnormal big toe position. On review, additional development is warranted. See 38 C.F.R. § 3.159(c). First, updated VA medical records should be obtained. Second, there is no indication that the full consent document was obtained. Information in VA records indicates that it must be accessed through Vista imaging. On remand, all documents pertaining to informed consent for the March 2013 surgery must associated with the claims file. In April 2015, a VA physician reviewed the claims folder and provided a medical opinion. On review, the Board finds the opinion inadequate as it is unclear whether the examiner concluded the Veteran suffered additional disability as a result of VA surgery. That is, the examiner indicated that the claimed disability was less likely than not caused by or a result of VA treatment, but then went on to provide opinions on proximate causation, to include stating that she developed problems with pronated left foot along with arch discomfort which would not have been a foreseen condition. The Veteran provided competent and credible lay evidence that her left foot has worsened since surgery. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a lay person is competent to report on that of which he or she has personal knowledge). Considering the lay statements along with the medical evidence, the Board finds evidence of additional disability. Notwithstanding and as discussed, questions remain as to actual and proximate causation. Thus, additional opinion is necessary. See 38 C.F.R. § 3.361(c), (d). The matter is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from April 2017 to the present. 2. Access the full consent document for the March 2013 left foot surgery through Vista imaging and associate the complete document to include signature with the claims file. 3. Thereafter, obtain an opinion from an appropriate clinician (other than the physician who provided the April 2015 VA opinion) to address the claim for compensation benefits under 38 U.S.C. § 1151 for residuals of a left foot Lapidus bunionectomy. For purposes of this opinion, please accept as fact that the Veteran has additional left foot disability following the surgery and provide opinions concerning the following: (a) Is it at least as likely as not the additional left foot disability was caused by the bunionectomy or treatment thereafter? In making this determination, please consider the Veteran's lay statements concerning continued pain and difficulty with prolonged standing and walking since the surgery. (b) If there is evidence of actual causation, please address whether the additional disability was at least as likely as not proximately caused by: (i) carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA - that is, did VA fail to exercise the degree of care that would be expected of a reasonable health care provider or furnish the treatment without informed consent?; or (ii) an event not reasonably foreseeable? (Continued on the next page) A complete, well-reasoned rationale must be provided for each opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Carsten, 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.