Citation Nr: 21012399 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-44 285 DATE: March 4, 2021 REMANDED Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residuals of a transrectal biopsy performed by the Fort Worth VA Medical Center on April 20, 2009, is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Air Force (USAF) from October 1955 to August 1959. In September 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In December 2019, the Board of Veterans’ Appeal (Board) denied the Veteran’s acquired psychiatric disorder claim and remanded his 38 U.S.C. § 1151 claim. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residuals of a transrectal biopsy performed by the Fort Worth VA Medical Center on April 20, 2009, is remanded. In December 2019, the Board remanded the 38 U.S.C. § 1151 claim to obtain needed medical opinion evidence. Moreover, the post-Remand record shows that the regional office (RO) attempted to obtain the requested medical opinions in January 2021. However, the Board does not find the opinions provided by the January 2021 VA examiner adequate. The Board has reached this conclusion because the examiner, as requested by the Remand, did not ever specifically state if “the Veteran suffer[ed] additional disabilities … as a result of VA treatment on April 20, 2009, and subsequent recovery care…” Instead, the examiner appeared to get confused (it appears) by the fact that Board specially asked about a “rectal perforation” when a rectum perforation is a natural part of the transrectal biopsy and the Board’s remand misidentified the subsequent colonoscopy as a colostomy. Therefore, the Board finds that another Remand is required to obtain the needed medical opinions. See 38 U.S.C.§ 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Stegall v. West, 11 Vet. App. 268 (1998).; The appeal is REMANDED for the following action: In order to comply with the earlier Remand, obtain a medical opinion from a suitably-qualified medical professional to address the claim for compensation under the provisions of 38 U.S.C. § 1151 for residuals of a transrectal biopsy performed by the Fort Worth VA Medical Center on April 20, 2009, and subsequent recovery care. The claims file should be made available and reviewed by the examiner in conjunction with obtaining the opinion. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during an examination, if needed, the examiner is asked to address the following: a. Provide an opinion as to whether the Veteran has any additional disability due to the transrectal biopsy performed by the Fort Worth VA Medical Center on April 20, 2009, and the subsequent recovery care. If he does not have any additional disability, the examiner must clearly say so. b If the Veteran has any additional disability, then as to each additional disability due to the transrectal biopsy performed by the Fort Worth VA Medical Center on April 20, 2009, and subsequent recovery care, provide an opinion as to whether it is at least as likely as not that it was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the treatment. c. If the Veteran has any additional disability, then as to each additional disability due to the transrectal biopsy performed by the Fort Worth VA Medical Center on April 20, 2009, and subsequent recovery care, provide an opinion as to whether it is at least as likely as not foreseeable. In providing answers to the above questions, the examiner should consider the Veteran’s competent claims regarding observable symptomatology. In providing answers to the above questions, the examiner should consider and discuss the significance, if any, of the subsequent colonoscopy. In providing answers to the above questions, the examiner is advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In answering the questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. (Continued on the next page)   If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating 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 in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.