Citation Nr: 21013649 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-07 676 DATE: March 10, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for additional right foot disability, to include osteomyelitis, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1966 to September 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision. The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2017. A transcript is of record. In September 2019, the Board remanded the case for further development. The case has since been returned to the Board for appellate review. Entitlement to compensation under 38 U.S.C. § 1151 for right foot osteomyelitis In a November 2020 VA medical opinion, the examiner opined that it was at least as likely as not that the Veteran had additional right foot disability due to his October 2011 right foot ganglion cyst excision and fifth metatarsal exostectomy, including osteomyelitis, degenerative arthritis, and a stable scar status-post right lateral foot graft. However, the examiner opined that it was less likely than not that the Veteran has additional disability due to any care received subsequent to his October 2011 surgery. In addition, the examiner opined that no additional disabilities resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider. In so finding, he stated that degenerative arthritis is a common long term sequela of acute surgical procedures performed on the bones and joints. The examiner also stated that the Veteran’s skin grafting over his right lateral foot resulted from a wound infection, which was an anticipated outcome of his October 2011 surgery. The examiner further opined that the Veteran did not have any additional disabilities that resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. Moreover, he opined that there was no evidence to support that there was a failure on part of VA to timely diagnose and/or properly treat the claimed disease or disability that allowed the disease or disability to continue to progress. In so finding, the examiner stated that the Veteran’s VA treatment records documented appropriate care with timely and regular dressing over a long period of time with appropriate antibiotic administration with no documentation of any adverse effects experienced by the Veteran. Notably, however, the examiner did not address the Veteran’s lay statements regarding his post-surgical care for a wound infection. In particular, during the April 2017 Board hearing, the Veteran testified that his surgical wound opened and started “draining” after his stitches were removed. He alleged that the VA physicians used “strips” to close the wound rather than stitches. See April 2017 Board Hearing Transcript, at 4. The Veteran stated that he returned to the VA medical facility, but he received the same treatment even though his wound remained open and was still “draining.” He also stated that he had to seek emergency treatment due to his severe pain and swelling. Id. Based on the foregoing, the Board finds that a remand is necessary to obtain an additional opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). As the issue under consideration concerns the Veteran’s assertion of negligence or fault on the actions of VA health care providers, the issue under consideration poses a medical problem of such complexity that an advisory opinion from an independent medical expert is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. For the foregoing reasons, the Board must remand this appeal with instructions to obtain a new medical opinion pursuant to established procedures as set forth in 38 U.S.C. § 5109. In addition, during the April 2017 Board hearing, the Veteran testified that he could not recall VA medical professionals reminding him about any complications of the right foot ganglion cyst excision and fifth metatarsal exostectomy. See April 2017 Board Hearing Transcript, at 3. He also testified that there was no discussion about the surgery. See id. at 4. Negligence may be shown if VA did not obtain informed consent for the medical treatment in question. 38 U.S.C. § 1151(a)(1)(B); 38 C.F.R. § 3.361(d)(2). In determining whether VA obtained informed consent, VA must consider whether health care providers have “substantially complied” with the informed consent procedures in 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361(d)(1)(ii). In this case, the Veteran’s VA medical records indicate that the full informed consent forms for his October 2011 surgery can be accessed through the Vista Imaging System. See September 23, 2011 VA medical record. However, the full signed informed consent forms are not currently associated with the claims file and the Board does not have access to the Vista Imaging System. Therefore, a remand is necessary to obtain any outstanding VA medical records. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records related to the Veteran’s October 2011 surgery, to specifically include any informed consent documents located in the Vista Imaging System. See, e.g., September 23, 2011 VA medical record (noting that the full consent document for the right foot excision of ganglion and ostectomy can be accessed through the Vista Imaging System). 2. Pursuant to 38 U.S.C. § 5109, the Agency of Original Jurisdiction (AOJ) should forward the entire claims file to an appropriately qualified independent physician for the purpose of preparing an advisory medical opinion. After completing a records review, the examiner should provide a written response to the following inquiries: (a) Is it at least as likely as not that the Veteran has additional disability due to his right foot ganglion cyst excision and fifth metatarsal head exostectomy performed at the Mountain Home VA Medical Center (VAMC) in October 2011? (b) Is it at least as likely as not that the Veteran has additional disability due to any care received subsequent to his right foot ganglion cyst excision and fifth metatarsal head exostectomy performed at the Mountain Home VAMC in October 2011, to include home health care services? In providing this opinion, the examiner should address the Veteran’s lay statements regarding his post-surgical treatment. In particular, during the April 2017 Board hearing, the Veteran testified that his surgical wound opened and started “draining” after his stitches were removed. He alleged that the VA physicians used “strips” to close his wound rather than stitches. See April 2017 Board Hearing Transcript, at 4. (c) For any additional disability, is it at least as likely as not that such additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA medical personnel? In providing this opinion, the examiner should discuss whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider by failing to diagnose and/or properly treat the Veteran’s wound infection following the October 2011 surgery. He or she should also address whether the Veteran suffered additional disability which probably would have been avoided if proper diagnosis and treatment had been rendered. (d) For any additional disability, is it at least as likely as not that such disability result from an event not reasonably foreseeable? In determining whether an event is not reasonably foreseeable, the standard is what a “reasonable healthcare provider” would have considered to be an ordinary risk of treatment that would be disclosed in connection with informed consent procedures of 38 C.F.R. § 17.32, which requires the primary health care provider to explain the reasonably foreseeable risks associated with the surgery or treatment being provided. Complete rationale for all requested opinions shall be provided. If the physician 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(s). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Wulff, 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.