Citation Nr: 21026266 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 12-24 115 DATE: April 30, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for left arm and hand disabilities is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for a neck disability is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from January 1967 to October 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision by the Albuquerque, New Mexico, Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2016, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The case was most recently remanded for additional development in July 2020.   1. Entitlement to compensation under 38 U.S.C. § 1151 for left arm and hand disabilities is remanded. 2. Entitlement to compensation under 38 U.S.C. § 1151 for a neck disability is remanded. 3. Entitlement to a TDIU is remanded. Although this case was previously remanded, the Board finds additional development is required for adequate determinations. A remand confers on a veteran or other claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). The August 2019 remand order included instructions for a medical opinion by a neurosurgeon or other appropriate medical specialist that identified any additional disability or disabilities of the neck and left upper extremity resulting from the C3 through C6 laminoplasties with foraminotomies performed at a VA medical facility on November 9, 2004. The available record includes VA opinions dated in March 2020 and September 2020 from R.J.M, M.D., identified as a Compensation & Pension Examiner. A January 2021 VA contract medical opinion was obtained from F.M.S., Jr., M.D., who is identified as a family practitioner. No information was provided as to any expertise in neurosurgery or other appropriate medical specialty for either Dr. R.J.M. or Dr. F.M.S., Jr. The Board also notes that there is an apparent inconsistency in the provided opinions in that the March 2020 opinion found a possible additional disability to the neck based upon reduced range of motion and the January 2021 opinion found there was no acute injury from the November 9, 2004, VA procedure. As such, further development is required to ensure compliance with the August 2019 remand order and to clarify any inconsistency in the evidence as to any additional disability to the Veteran’s neck or left arm and hand. The January 2020 supplemental statement of the case also notified the Veteran of the efforts taken to assist him in obtaining information concerning the surgeon involved in surgical treatment on November 9, 2004. No further action is required as to this specific matter based upon the available record. The issue of entitlement to a TDIU is inextricably intertwined with the remanded 1151 claims. The matters are REMANDED for the following action: Obtain an addendum opinion from a neurosurgeon or other appropriate medical specialist. Information should be provided as to the basis of any such identification for the record. If an opinion cannot be obtained from a neurosurgeon or other appropriate medical specialist an explanation must be provided. Te examining physician/specialist is to be asked to provide information to demonstrate that they are qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation (which may be redacted as deemed warranted)). This information is to be associated with the Veteran’s claims file. Following review of the record, the examiner must opine as to the following: a. Does the Veteran have an additional disability or disabilities of the neck and left upper extremity resulting from the C3 through C6 laminoplasties with foraminotomies performed at the VA medical facility on November 9, 2004. If so, identify the additional disability or disabilities. b. If additional disability is shown, opine whether the additional disability or disabilities were due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in performing the November 2004 cervical spine surgery. It should be noted that the Veteran has asserted that the surgeons involved in his November 9, 2004, cervical spine surgery lacked the proper skill and training to perform the procedure. The examiner is requested to acknowledge the assertions and, if appropriate, respond accordingly. c. For any additional disability shown, opine whether itis at least as likely as not (fifty percent or greater) that the disability or disabilities was reasonably foreseeable. d. In determining whether the disability or disabilities were reasonably foreseeable, the examiner should address whether the disability or disabilities were the type of risks that a reasonable health care provider would have disclosed in connection with obtaining informed consent. Note, an event is not reasonably foreseeable, when a reasonable health-care provider would not have considered the results to be an ordinary risk of the treatment provided. e. The above opinions should include a detailed review and discussion of the evidence of record. Supporting rationale with citations to the evidence should be provided with each question answered. If the examiner cannot provide an opinion, the examiner must affirm that all procurable and assembled data was fully considered and a detailed rationale must be provided for why an opinion cannot be rendered. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Douglas 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.