Citation Nr: 21028046 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-28 861 DATE: May 10, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for bilateral lower extremity (BLE) disability, to include peripheral neuropathy and pain, due to December 2013 Department of Veterans Affairs (VA) surgery is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1976 to November 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A November 2019 Board decision remanded the claim to obtain a VA medical opinion. Unfortunately, there has not been substantial compliance with the Board's previous remand directive and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Although an opinion was obtained in January 2020, for the reasons provided below, it is inadequate. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran contends that his BLE neuropathy is due to his December 2013 wart removal surgery, and that he has daily pain ever since his December 2013 surgery. See Statement in Support of Claim (February 2014). Here, the Board finds that the January 2020 opinion is inadequate to decide the appeal as it provides no indication that the VA clinician compared the Veteran's condition immediately before the beginning of the medical care upon which the claim is based to the Veteran's condition after such care. 38 C.F.R. § 3.361(b). The clinician noted that the Veteran underwent a skin shave biopsy for warts (VA medical care) in December 2013 but did not note or discuss the Veteran's BLE condition immediately before undergoing VA medical care. No medical records prior to the VA medical care were noted and no discussion of the severity of the condition prior to the VA medical care was provided. The clinician also noted imaging results from January 2014 but did not note or discuss the Veteran's BLE condition immediately after undergoing VA medical care. Notably, the opinion provides no indication that the clinician considered VA treatment records one week after the December 2013 VA medical care, in which the Veteran complained of severe post-operative pain and the attending clinician noted that "pain inappapriate [sic] to the nature of the wound...." See CAPRI (June 2014). Additionally, the January 2020 opinion provided no confirmation of whether the Veteran actually has an "additional disability" that is due to his VA medical care in December 2013. The opinion reflects that it was "less likely than not that the additional disability resulted from carelessness, negligence...." See C&P Exam (January 2020) (emphasize added). However, it then states as part of the rationale for the negative conclusion that there was no additional disability from December 2013 VA medical care; the opined related that the Veteran's peripheral neuropathy and pain to his diabetes mellitus. Id. Therefore, to ensure that VA has met its duty to assist, remand is required. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall, 11 Vet. App. at 271. The Veteran further contends that informed consent was not obtained as he was not told that excruciating pain and neuropathy were possible side effects of the surgery. See NOD (January 2015). VA treatment records show that the answer "[y]es" was provided to the question of whether the procedure is "[c]onsistent with consent?" See CAPRI (June 2014). However, this notation does not provide whether informed consent was obtained on the day of the surgery, and such consent form is not included in the electronic claims file. As the Veteran's contentions are partially based on the information consented to by the Veteran prior to surgery, the Board finds that the consent forms for the December 2013 surgery are required to be associated with the claims file. The matter is REMANDED for the following action: 1. Obtain and associate the consent form(s) for the December 2013 VA wart removal surgery with the claims file. 2. Obtain an addendum opinion from an appropriate clinician to address whether the Veteran has bilateral lower extremity peripheral neuropathy and pain caused by the December 2013 wart removal surgery. The clinician should specifically address the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran has an "additional disability" caused by December 2013 wart removal surgery? If so, any additional disability should be clearly identified. The term "additional disability" means any condition that did not exist immediately before the Veteran's December 2013 surgery. If there is no "additional disability," then the clinician does not need to provide answers to (b) and (c) but must explain why the bilateral lower extremity peripheral neuropathy and pain are not additional disabilities caused by the December 2013 surgery. (b.) If the Veteran has an additional disability caused by the December 2013 VA surgery, then is it at least as likely as not that the proximate cause of such disability or disabilities is carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA? (c.) If the Veteran has an additional disability caused by the December 2013 VA surgery, is it at least as likely as not that this additional disability (bilateral lower extremity peripheral neuropathy and pain) was reasonably foreseeable as an ordinary risk of the treatment that would be disclosed in connection with the informed consent. The signed consent forms should be reviewed and addressed in the opinion. 3. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thaddaeus J. Cox, 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.