Citation Nr: 21013819 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 16-35 937 DATE: March 10, 2021 REMANDED Service connection for residuals of cyst removal on spinal area is remanded. The claim for compensation under 38 U.S.C. § 1151 for residuals of cyst removal on spinal area is remanded. REASONS FOR REMAND The Veteran had active service from May 1969 to February 1971. He is seeking service connection for residuals of cyst removal from his spinal area, believing that the cysts were result of his military service, and more specifically his herbicide exposure therein during his Vietnam service. He also seeks compensation under 38 U.S.C. § 1151 for residuals of a lipoma (cyst) removal surgery from his spinal area conducted at the Wiles-Barre VAMC in September 1987. A July 2019 Board decision denied the service connection claim and the 1151 claim, to which the Veteran appealed to the United States Court of Appeals for Veterans Claims (the “Court”). In October 2020, the Court vacated the July 2019 Board decision and remanded the issues for actions consistent with a Joint Motion for Remand (JMR). In the JMR, parties agreed that the Board failed to address whether duty to assist was satisfied with regard to (1) obtaining the Veteran’s private treatment records in light of (a) his testimony at the Board hearing in March 2019 that he sought treatment from his private doctor (Dr. Williams) years ago, and was told that he had nerve damage as a result of the cyst removal surgery, and (b) VA treatment records in March 2016 showing that the Veteran reported that he was followed by Dr. Kevin Williams of Peckville Pennsylvania; (2) whether a VA examination should be afforded to assess potential nerve damage caused by cyst removal surgery by VA in light of a private opinion by Dr. Elmo Baldassari dated March 2019 stating that the Veteran’s neuropathy and pain in the lower extremities could be and most likely was related to his 1987 surgical intervention. Therefore, the matters are REMANDED for the following actions: 1. With the assistance of the Veteran, make affords to obtain the private medical records from Dr. Williams that the Veteran mentioned in the Board hearing in March 2019 and his VA treatment session in March 2016. 2. Obtain a VA medical opinion to assess the residuals of cyst removal from his spinal area. If a physical examination is necessary to answer the Board’s questions, one should be scheduled. The examiner should review the “Remand BVA or CAVC” received 10/14/20 and the JMR (CAVC Decision received 10/21/20) for an explanation as to what is needed in the requested medical opinion. The examiner should answer the following questions: (a) Is there any additional disability (to include nerve damage or neurological impairment) caused by the cyst removal surgery in 1987? Why or why not? To do this, the examiner should compare the Veteran’s disability immediately before the surgery to his condition after the procedure. In doing so, the examiner should discuss the private opinion by Dr. Elmo Baldassari dated March 2019 stating that the Veteran’s neuropathy and pain in the lower extremities were most likely related to his surgical intervention in 1987 (contained in a 04/09/2019 document entitled “Medical Treatment Record - Non-Government Facility”). (b) If the answer to question (a) is yes, is it at least as likely as not (50 percent or greater probability) that the additional disability, to include nerve damage or neurological impairment (if any), was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA (to include the VA surgeon) in performing the cyst removal surgery in 1987 and/or post-operative care? Why or why not? (c) If the answer to question (a) is yes, is it at least as likely as not (50 percent or greater probability) that the additional disability, to include nerve damage or neurological impairment (if any), was a result not reasonably foreseeable from the cyst removal surgery in 1987? Why or why not? (Continued on the next page)   The examiner is informed that “not reasonably foreseeable” means that it is a result that would not be generally discussed in obtaining informed consent. Additionally, failure to advise a patient about a reasonably foreseeable consequence of treatment is a minor, nonmaterial deviation if a reasonable person under the circumstances would have consented to the treatment anyway. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Wang, 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.