Citation Nr: 21077452 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 19-01 498 DATE: December 29, 2021 REMANDED The issue of entitlement to compensation under 38 U.S.C. §1151 for additional disability resulting from VA treatment for left great toenail in April and May of 2018 is remanded. The issue of entitlement to compensation under 38 C.F.R. §1151 for additional disability resulting from VA treatment for right great toenail in April and May of 2018 is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1968 to June 1969. This appeal to the Board of Veteran's Appeals (Board) arose from a November 2018 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). During the current appeal, and specifically in June 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the file. In August 2021, the Board remanded the claims for further evidentiary development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.§ 7107(a)(2). After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to a final adjudication of this appeal. The Board sincerely regrets the delay caused by this second remand but finds that the development requested herein is necessary before a final decision on this appeal can be made. Previously, the Board remanded this appeal to accord the Agency of Original Jurisdiction (AOJ) an opportunity to obtain private and VA treatment records regarding treatment that the Veteran had received for his bilateral great toenails. In April 2018, he underwent a bilateral great toenail avulsion at the VA Outpatient Clinic (VAOPC) in Harlingen, Texas. After the procedure, he was treated for infection of both of his toenails. As mentioned in the August 2021 remand, the October 2018 VA Examiner indicated that the Veteran's prior bilateral bunionectomy was more likely than not the cause of his current disabilities involving his left and right great toenail. However, as further review of the records showed that the Veteran underwent a left toenail removal at the Valley Baptist Medical Center (VBMC) prior to the April 2018 removal in January 2010 [see June 2011 Medical Treatment Record Government Facility], the AOJ was directed to obtain medical records concerning that removal. The Veteran submitted private medical records from VBMC and the VA Form 21-4142 (Authorization for Release of Information) after the AOJ issued the Supplemental Statement of the Case (SSOC). Those records did not include documentation of the January 2010 toenail removal. The Board reiterates that any records documenting the January 2010 procedure is pertinent to the determination of the current claims. Thus, to afford the Veteran every possible consideration of his claims, on current remand, the AOJ should make the reasonable efforts to obtain the records regarding the January 2010 procedure. Also, the October 2018 medical opinion does not address the private medical records documenting the treatment of the Veteran's left and right toenails after the April 2018 procedure from VA. Thus, on current remand, another opinion needs to be obtained that addresses all of the relevant evidence of the record. Lastly, the VA records indicate that informed consent was obtained prior to the procedureand that "the full consent document can be assessed through Vista Imaging". See April 2018 IMED Informed Consent Note (June 2018 VA Medical Treatment Records [CAPRI]). The document containing the full consent is currently not part of the current record. To satisfy the first prong of proximate causation, it must be shown that the VA hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability or death and that: (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or that (ii) 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. Thus, on current remand, the informed consent must be obtained and associated with the claims file. Accordingly, these matters are REMANDED for the following action: 1. Make the reasonable efforts to obtain records from the Valley Baptist Medical Center (VBMC) pertaining to the January 2010 left big toenail removal, using the October 2021 VA Form 21-4142 submitted by the Veteran to secure any necessary authorizations. If necessary, provide the Veteran again with the VA forms 21-4142/4142(a), General Release for Medical Provider Information and Authorization for Release of Information. If the records cannot be obtained and there is no affirmative evidence that they do exist, inform the Veteran of the records that could not be obtained, including what efforts were made to obtain them. He should be notified that he may submit any such records. All efforts should be recorded in the claims folder. 2. Take all necessary action to obtain the actual, signed consent form for the Veteran's April 2018 bilateral great toenail procedure at the VAOPC in Harlingen, Texas. If the consent form cannot be obtained, the reasons for the unavailability and the AOJ's efforts to obtain them must be documented in the claims file, and proper notification under 38 C.F.R. § 3.159(e) must be provided to the Veteran and his representative. 3. Once all available, relevant medical records have been received, and associated with the claims file, the AOJ should refer the Veteran's entire claims file to a medical professional of appropriate expertise to provide an addendum opinion. If the VA examiner determines that it is necessary, schedule the Veteran for a VA examination. After record review and/or examination, the VA examiner should opine, with supporting rationale as to the following inquiries, as clearly and precisely as possible: (a) Is it at least as likely as not (50 percent or greater possibility) that any additional disability involving the left and right great toenail was caused by, or became worse as a result of, VA treatment, specifically the April 2018 procedure and the May 2018 post-operative treatment? (b) Is it at least as likely as not (50 percent or greater possibility) that any additional disability resulted from the attending VA physician's failure to follow the appropriate standard of care? (c) Is it at least as likely as not (50 percent or greater possibility) that the additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider (d) Is it at least as likely as not (50 percent or greater possibility) that failure on the part of VA to timely diagnose and/or properly treat the claimed disability allowed the disability to continue to progress? In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history, pertinent lay evidence, and the relevant medical literature or studies as applicable to this case, which may reasonably explain the medical analysis in the study of this case. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Then, review the record, conduct any additional development deemed necessary, and readjudicate the appeal. If any benefit sought remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC). The Veteran and his representative should be afforded the appropriate time period to respond. Then, if indicated, the case should be returned to the Board for appellate disposition. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination that may be scheduled may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.