Citation Nr: 21026992 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 14-35 166 DATE: May 4, 2021 REMANDED Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residuals of lumbar spine fusion, to include mesenteric ischemia s/p hemicolectomy and jejunal resection (claimed as spine, colon, and intestine problems), is remanded. REASONS FOR REMAND The Veteran had active military service from September 1979 to November 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of a Department of Veteran's Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Entitlement to Compensation 38 U.S.C. § 1151 The Veteran maintains that as a result of treatment received in March 2009 from a VA facility, that he has sustained an additional disability. More specifically, the Veteran avers that a March 2009 surgery performed to treat his degenerative disc disease of the lumbar spine, resulted in further disabling effects of the spine and disabilities of the colon and gastrointestinal functions. The Veteran has demonstrated an understanding of the voluntary medical procedure that he underwent for the treatment of his lumbar spine. See March 17, 2009, VA Treatment Records Signed Informed Consent. In his February 2021 hearing before the Board, he also provided an opinion regarding the status and etiology of his present disabilities of the lumbar spine as well as of his colon, additional gastrointestinal functionality, and alleged resulting erectile dysfunction. Notably, the Veteran has not established the requisite medical expertise to provide a probative or competent opinion in any of these regards. The Veteran also testified that he has received ongoing treatment through the Illinois Department of Corrections. He explained that through that treatment he learned of additional opinions concerning the cause of his disabilities. Again, however, the Veteran's statements regarding the information provided to him do not provide reliable competent and credible evidence in support of the claim. Furthermore, those treatment records have not yet been obtained and associated with the claims file. Each of the avenues available for establishing entitlement to a claim pursuant to 38 U.S.C. § 1151 requires the assessment of an expert medical practitioner. The Board is mindful that a June 2011 VA examination report reflects the opinion of an expert medical professional. Although the opinion provides that the Veteran's additional disabilities are as a result of the spinal fusion surgery, the examiner concluded that there is no evidence in the record to suggest that they are as a result of any carelessness, negligence, lack of proper skill, error in judgment or similar instance on the part of the attending VA personnel. In addition, the examiner concluded that any additional disability did not result from an event that could not reasonably have been foreseen or anticipated by a competent and prudent health care provider. The Board finds that this opinion is inadequate for several reasons. First, the examiner failed to discuss whether the treating physicians exercised the degree of care that would be expected of a reasonable health care provider in the given circumstances. Rather, the examiner provides a conclusory statement without any rationale other than to assess that the VA did not fail to timely diagnosis and properly treat the additional disabilities. As the medical records indicate, the Veteran sustained a mesenteric ischemia during the post-operative days after his spinal fusion. See June 2011, VA Examination Report; March 20, 2009, VA Treatment Records. Additional treatment records expand upon this narrative and explain that the Veteran "developed embolus with resulting ischemic necrosis of segment of jejunum and right colon," or in other words, experienced a blood clot which cut off circulation to a portion of the small intestine and right portion of the colon, requiring partial removal. The June 2011 examiner did not address the etiology of such occurrence other than to state that it was caused as a result of the VA surgical treatment. The timely diagnosis and treatment of the disability is merely one theory of liability. The examiner failed to discuss or provide a rationale concerning the degree of care used during the procedure itself or immediate after-care. Second, the examiner did not address informed consent in any regard. Incidentally, the failure to provide an analysis and rationale in this regard deems the opinion concerning foreseeability of the event inadequate as well. In light of the inadequacies noted above, the Board must remand this matter to obtain a new medical opinion. As such, this matter must be remanded so that the Veteran can be afforded a new VA examination. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records, including the records discussed herein, and associate them with the claims file. 2. Obtain a medical opinion from an appropriate clinician. The claims file must be made available to, and reviewed by the examiner. Based on the review of the record, the examiner is asked to provide the following opinions: Is it at least as likely as not (50 percent or greater probability) that the Veteran has an additional disability due to his VA treatment from March 2009? If the examiner finds that the Veteran does have additional disability as a result of VA treatment, the examiner must provide an opinion as to whether such disability is at least as likely as not (50 percent or greater probability) the result of carelessness, negligence, lack of proper skill, or similar instance of fault on the part of VA; to include VA medical personnel's failure to exercise the degree of care that would be expected of a reasonable healthcare provider. The examiner must also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such additional disability was the result of an event not reasonably foreseeable. A complete and detailed rationale must be provided for all opinions expressed. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. 3. Confirm that all medical opinions provided comport with this remand, and undertake any other development determined to be warranted. 4. Then, readjudicate the appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Sutherell, 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.