Citation Nr: 21015159 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 19-32 616 DATE: March 16, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for a disability manifested by altered mental status, including unspecified speech and thought process issues, due to a May 2011 VA right total knee replacement surgery, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1991 to May 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a Department of Veterans Affairs (VA) Regional Office (RO) rating decision issued in May 2017. The May 2017 rating decision also denied service connection for posttraumatic stress disorder and chronic right knee disability. In her September 2017 and May 2018 notices of disagreement, the Veteran indicated that she also wished to appeal these issues. However, prior to issuance of the statement of the case, in a March 2019 statement, the Veteran, through her representative, withdrew her appeal of these issues. In an August 2019 letter, the RO acknowledged the discontinuance of the appeal. As such, these matters are not before the Board. In the October 2019 substantive appeal, the Veteran requested that she be afforded a hearing before the Board via videoconference. In April 2020, the Veteran, through her representative, withdrew the request for the videoconference hearing. In February 2021, the Board acknowledged the Veteran’s withdrawal of the videoconference request. This matter is now properly before the Board. The Veteran contends that her altered mental status, including unspecified speech and thought process issues, are due to a May 2011 surgery performed while under VA care. When a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. To establish entitlement to benefits under 38 U.S.C. § 1151, the Veteran must show each of the following: the disability or additional disability claimed; VA treatment; a nexus between the additional disability and the VA treatment; and that the proximate cause of the additional disability was some element of fault on the part of VA, or was an event not reasonably foreseeable. Id. For claims filed on or after October 1, 1997, as in this case, a veteran must show that the VA treatment in question resulted in additional disability and that the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of additional disability was an event not reasonably foreseeable. See VAOPGCPREC 40-97; 38 U.S.C. § 1151. To determine whether additional disability exists, VA compares a veteran's physical condition immediately prior to the beginning of medical or surgical treatment to the Veteran's physical condition after such care has ceased. 38 C.F.R. § 3.361(b). To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, resulted in the Veteran's additional disability. Merely showing that a veteran received care, treatment, or examination and that the Veteran has additional disability does not establish cause. 38 C.F.R. § 3.361(c). If a Veteran receives treatment by or through VA and sustains disability in addition to that for which he was being treated, VA compensation may be awarded as if the additional disability was service connected. 38 U.S.C. § 1151. To qualify, the additional disability cannot be a result of the Veteran's willful misconduct and must have been caused by hospital care, medical or surgical treatment, or examination furnished to the Veteran under any law administered by VA. The proximate cause of the disability must be (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or (b) an event not reasonably foreseeable. Id. To establish fault on the part of VA, it must be shown that VA hospital care, medical or surgical treatment, or examination caused a veteran's additional disability and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. 38 C.F.R. § 3.361(d). In September 2019, the Veteran’s daughter informed the VA that the Veteran would not be able to attend her scheduled VA examination due to hospitalization. The Veteran’s entitlement to compensation under 38 U.S.C. § 1151 for unspecified speech and thought process issues due to the May 2011 surgery cannot be established without a current VA opinion. A medical professional must establish the relationship between the Veteran’s claimed condition and determine whether it was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or an event not reasonably foreseeable. VA’s duty to assist is not always a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran must cooperate in VA’s efforts to obtain evidence needed to adjudicate his claims, including keeping contact information up to date, attending scheduled VA examinations, and promptly communicating with VA why he or she cannot attend a scheduled VA examination. Here, the Veteran’s daughter reported that the Veteran was hospitalized and could not attend the VA examination as scheduled. The Board finds that sufficient cause for failure to attend the VA examination was provided and the RO should have scheduled the Veteran for another examination. Therefore, the Board must remand this matter so that the Veteran may be afforded a VA examination to appropriately adjudicate the claim. Moreover, it does not appear that the May 2011 surgical report or any signed consent forms have been associated with the record. As these documents are relevant to the current claim, they must be obtained. The matters are REMANDED for the following action: 1. Associate the May 2011 VA right total knee replacement surgical report and any associated documents, including any signed informed consent forms, with the record. Also, obtain any additional VA records. 2. Schedule the Veteran for a VA examination with an appropriate clinician to address Veteran’s claim for entitlement to compensation under 38 U.S.C. § 1151 for disability manifested by altered mental status, including unspecified speech and thought process issues, due to a May 2011 right knee replacement surgery. If the Veteran is unable to report to a VA examination, obtain a medical opinion from an appropriate clinician. The claims file must be reviewed. The examiner must address the following questions: (a) Does the Veteran have any additional altered mental status disability, including unspecified speech and thought process issues, following the right total knee replacement surgery performed by VA in May 2011? To determine whether the Veteran has additional disability, the examiner should compare the Veteran’s condition before the May 2011 VA surgery to the Veteran’s condition after the VA surgery. See, e.g., VA clinical record dated May 11, 2011 showing neurological difficulties following possible TIA two months prior; VA clinical record dated May 31, 2011 indicating right total knee replacement complicated by altered mental status; and VA clinical record dated June 4, 2011 showing altered mental status post right knee replacement. (b) If the Veteran has an additional disability, was the additional disability caused by or made worse by the May 2011 VA surgery? (c) If the Veteran has an additional disability that was caused by or made worse by the May 2011 VA surgery, did this additional disability result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA? In providing this opinion, the examiner should address the Veteran’s contention that her VA treatment providers were careless in the surgical treatment for her knee by leaving her sedated for too long. (d) If the Veteran has an additional disability that was caused by or made worse by the May 2011 VA surgery, notwithstanding any informed consent documents of record, was any additional disability a reasonably foreseeable outcome of the May 2011 VA surgery based upon the specific facts and circumstances of this Veteran’s case? In providing this opinion, the examiner should address whether a “reasonable health care provider” would have considered the Veteran’s additional disability to be an ordinary risk of the surgical treatment provided and would have disclosed such a risk in connection with the treatment, regardless of the risks the treating physician actually foresaw and disclosed in any informed consent form. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hellina Y. Hailu, 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.