Citation Nr: 21011732 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 13-06 407 DATE: March 2, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for residual on an HIV infection is remanded. Entitlement to service connection for a disability manifested by right ear pain is remanded. INTRODUCTION The Veteran served on active duty from June 1970 through July 1973. In October 2018 and February 2019, the Board remanded the above-noted issues for further development. The case has since been returned for additional appellate review. REASONS FOR REMAND The Board finds additional development is again required before the above-noted claims are decided. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the course of the prior remands, the Board requested a medical opinion from an examiner with sufficient expertise to opine on the Veteran’s claim for compensation for residuals of an HIV infection. In particular, the Board asked the examiner to provide an opinion as to whether the Veteran’s disability resulted from an event that was not reasonably foreseeable. In November 2019 the RO obtained a VA examination and medical opinion addressing the Veteran’s claim. The Board appreciates the comprehensive medical history assessment, and thorough opinions provided by the examiner; however, the examiner appears to have provided a medical opinion that is not in concert with the applicable law. Specifically, 38 U.S.C. § 1151 provides two avenues for compensation. First, a veteran may be compensated for disability caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment. Alternatively, a veteran may also be compensated for disability caused by an event not reasonably foreseeable. In the course of the November 2019 VA examination, the examiner indicated it was “less likely as not that the Veteran’s HIV infection was an event reasonably foreseeable in the course of such treatment provided by the VA and thereby preventable by the VA.” (emphasis added). The examiner also indicated that while procedures performed on the Veteran in prior years have since been improved, those procedures were within the standard of care at the time. Unfortunately, the examiner failed to provide an answer to the question posited. Specifically, the examiner was not asked whether any care provided to the Veteran foreseeably could have caused his HIV infection. Rather, he was asked to state whether it was as likely as not that any care provided to the Veteran by VA could not have been a foreseeable event that caused his HIV infection. The examiner’s subsequent acknowledgement that procedures have changed—likely to ensure greater patient safety—provides some evidence indicating the applicable legal standard may be met in this case. Therefore, the Board finds a remand is necessary in order for the examiner to provide an opinion addressing this alternative basis for entitlement. Next, the Board notes the prior remands requested examinations and medical opinions addressing the Veteran’s right ear pain condition. Though the Veteran subsequently underwent VA examinations in August 2019 and November 2020, these examinations were performed by an Audiologist and Family Nurse Practitioner respectively. Following each of these examinations, the clinicians determined they could not provide a clinical diagnosis of the Veteran’s claimed disability and instructed the RO that an examination should be performed by an Ear, Nose, and Throat Specialist. To date, the RO has not obtained a competent examination by an Otolaryngologist as instructed, and as such, the Board finds substantial compliance with the prior remand instructions has not been achieved. Accordingly, the case is REMANDED for the following actions: 1. Obtain an addendum medical opinion from the examiner who conducted the Veteran’s November 2019 VA HIV-related illness examination, if available, and if unavailable from an Infectious Disease specialist with sufficient expertise to comment on the Veteran’s HIV infection transmission. All pertinent evidence of record should be made available to and reviewed by the examiner. A new examination should only be conducted if deemed necessary by the examiner. Based on a review of the Veteran’s pertinent history and the prior examination results, the examiner should state an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s HIV infection was proximately caused or aggravated by an event that could not have reasonably been foreseen by a reasonable healthcare provider administering the Veteran’s care at the Milwaukee, Fort Wayne, or Bay Pines VAMCs. In this regard, the examiner must discuss and consider the Veteran’s competent lay statements as they relate to his reports of being potentially infected by HIV at a VA facility as a result of various procedures he underwent. Specifically, the examiner is asked to consider the prior statement made by the November 2019 VA examiner indicating procedures performed on the Veteran in prior years have since been improved. In this respect, the examiner is asked to consider and explain whether there is a 50 percent probability or greater that prior outmoded procedures may have led to the Veteran’s current HIV infection. The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to provide the required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 2. Also, afford the Veteran a VA examination by an Otolaryngologist, to address the etiology of his claimed right ear pain disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) the Veteran’s current right ear pain disability: a) originated during his period of active service or is otherwise etiologically related to his active service; b) was caused by his service-connected hearing loss disability; c) was worsened to any degree by his service-connected hearing loss disability; d) was caused by his service-connected tinnitus; or e) was worsened to any degree by his service-connected tinnitus. The examiner must provide a complete rationale for all proffered opinions. The examiner must discuss and consider the Veteran’s competent lay statements. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, 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.