Citation Nr: 21005574 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 15-37 852 DATE: February 2, 2021 REMANDED Entitlement to compensation under 38 U.S.C. §1151 for a right-sided cerebral vascular accident, claimed as a stroke, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1966 to April 1969. The Board most recently remanded the claim in June 2020 for further development. There has not been substantial compliance with the remand directives and the claim must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). 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). The Veteran seeks compensation under 38 U.S.C. § 1151 for a right-sided cerebral vascular accident, claimed as a stroke. On November 4, 2011, the Veteran underwent a total left knee replacement arthroscopy revision surgery. During the surgery, the Veteran suffered a stroke. He argues that the VA providers erroneously discontinued Coumadin 8 days prior to his November 2011 surgery without substituting another anti-clotting medication, which caused his stroke during surgery. The claim must be remanded again because the November 2020 VA opinion obtained on remand is inadequate. The November 2020 VA examiner had offered internally inconsistent opinions because they appear to be for and against the claim. Stating that, “additional disability resulted from carelessness, negligence lack of skill,” but that the disability was “less likely than not” caused by the treatment at issue or from an event that could not have reasonably been foreseen. Additionally, despite the Board’s clear directive, the medical opinion provided no discussion of the complications that developed during the Veteran’s November 2011 surgery and whether or not any complications were either foreseeable. There was also no discussion in the opinion about whether the Veteran provided his informed consent. Additionally, the VA examiner failed to address the relevance of clinical practice guidelines from the American College of Chest Physicians that were referenced in letters from the Veteran’s attorney in support of the claim. VA treatment records reveal that the Veteran received computed tomography (CT) scans on November 4, 2011; November 7, 2011; November 8, 2011; November 15, 2011; and November 23, 2011. Further, the Veteran signed a consent form prior to his knee surgery. Attempts to obtain these records, as well as treatment records prior to December 2011 have not been undertaken. As such, the Board is unable to adjudicate the Veteran's claim without a complete copy of the claims file. The matters are REMANDED for the following action: 1. Obtain all of the Veteran’s available VA treatment records for the period prior to December 2011; specifically, computed tomography (CT) scans completed on November 4, 2011; November 7, 2011; November 8, 2011; November 15, 2011; and November 23, 2011. Obtain a copy of the Veteran’s signed consent form for the November 4, 2011 left knee surgery. Document all requests for information as well as responses in the record. If any of the records noted here are unavailable, that should be noted in the record. 2. After completion of the above, obtain an addendum opinion regarding the § 1151 claim. Arrange for the record to be reviewed by an appropriate examiner, preferably by a neurologist. The record, including a complete copy of this remand, must be provided for the examiner’s review of the relevant history, including especially of the treatment in question. Based on a review of the complete record, the examiner must address whether the Veteran’s November 2011 stroke was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the treatment or owing to an event that was not reasonably foreseeable. Also relevant is whether the Veteran provided his informed consent to the procedures. Specifically, the examiner must address statements made by the Veteran’s attorney in a December 2014 letter in which he argued that the discontinuation of the Veteran’s Coumadin prior to his November 2011 surgery amounted to medical malpractice, as well as address the relevance of clinical practice guidelines referenced in the attorney’s letter from the American College of Chest Physicians. To this end, the examiner should provide a discussion of the complications that developed as a result of the Veteran’s November 2011 surgery, explain why the complications were foreseeable (or unforeseeable), and discuss the subsequent treatment and why it was deemed appropriate in light of the statements provided by the Veteran’s attorney and the referenced clinical practice guidelines from the American College of Chest Physicians. It is most essential the examiner provide explanatory rationale for the opinion, with specific reference to the evidence of record where appropriate. If an opinion cannot be provided because it would require speculation, the examiner should so state and explain why this is so. In addition, the examiner should state whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge, there are multiple possible etiologies, with none more prevalent than another, or whatever may be the case. 3. Confirm that the VA medical opinion provided comports with this remand, and undertake any other development determined to be warranted M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.E. Bresler, 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.