Citation Nr: 21028683 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 17-08 206 DATE: May 11, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for residuals of prostate cancer, claimed as lymphedema of the lower extremities, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1966 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the case for further development in August 2020. The case has since been returned to the Board for appellate review. In March 2019, the Veteran presented testimony at a hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript is of record. In a March 2021 letter, the Board offered the Veteran the opportunity to testify at a hearing before another VLJ who would ultimately decide the appeal. The letter also notified the Veteran that, if he did not respond within 30 days, the Board would assume that he did not want another hearing and proceed accordingly. To date, the Veteran has not responded. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of prostate cancer claimed as lymphedema of the lower extremities In August 2020, the Board found that, based on the Veteran's competent or expert testimony as a medical doctor, and for purposes of the remand, the Veteran had additional disability diagnosed as lymphedema of the bilateral lower extremities. The Board remanded the case to obtain a VA medical opinion. In so doing, the Board instructed the examiner to address the Veteran's competent testimony relating his lower extremity lymphedema to a perineal injury sustained during a September 27, 2011 radical perineal prostatectomy that was performed at a VA facility. The Agency of Original Jurisdiction (AOJ) obtained a VA medical opinion in October 2020. Unfortunately, the Board finds that this opinion does not substantially comply with the Board's August 2020 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). In the October 2020 VA medical opinion, the examiner opined that it was less likely as not that the claimed condition was caused by or became worse as a result of the VA treatment; that additional disability resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel; that additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider; and/or that failure on the part of VA to timely diagnose and/or properly treat the claimed condition allowed the disease or disability to continue to progress. Notably, however, the October 2020 VA examiner did not address the Veteran's March 2019 Board hearing testimony, as instructed by the Board. Stegall, 11 Vet. App. at 271. The Veteran was also afforded a VA hematologic and lymphatic examination in November 2020, during which the examiner diagnosed him with bilateral venous insufficiency with lower extremity edema. Notably, the examiner concluded that the Veteran was erroneously diagnosed with lymphedema. In so finding, the examiner stated that the claims file contained no evidence of lymphatic involvement. However, the examiner did not address the Veteran's March 2019 Board hearing testimony regarding lymphedema or the VA medical records that appear to document assessments of lymphatic damage. See, e.g., March 2018 VA medical record (noting an assessment of chronic lymphedema of the lower extremities etiology status-post surgery and lymphatic damage). As such, it appears that the opinion was based on an inaccurate or incomplete factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (finding that a medical opinion based on incomplete or inaccurate factual premises are not probative). Based on the foregoing, and although the Board sincerely regrets the delay, a remand is necessary to obtain an additional opinion. See Barr, 21 Vet. App. at 311. As the issue under consideration concerns the Veteran's assertion of negligence or fault on the actions of VA health care providers, the issue under consideration poses a medical problem of such complexity that an advisory opinion from an independent medical expert is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. For the foregoing reasons, the Board must remand this appeal with instructions to obtain a new medical opinion pursuant to established procedures as set forth in 38 U.S.C. § 5109. Lastly, the Veteran's VA medical records indicate that the full informed consent forms for his September 2011 radical perineal prostatectomy can be accessed through the Vista Imaging System. See August 16, 2011 VA medical record. However, the full signed informed consent forms are not currently associated with the claims file and the Board does not have access to the Vista Imaging System. In addition, it is unclear whether the full operative report for the Veteran's September 2011 surgery has been associated with the record. In this regard, a September 2011 operative report listed "see dictation" for findings. However, the VA medical records currently associated with the claims file do not appear to include any dictation findings. Therefore, a remand is also necessary to obtain any outstanding VA medical records. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records, including any surgical reports and dictation findings pertaining to the Veteran's September 2011 surgery, and any informed consent documents located in the Vista Imaging System. See, e.g., September 27, 2011, VA operative record (listing "see dictation" for findings) and August 16, 2011 VA medical record (noting that the full consent document for the radical perineal prostatectomy can be accessed through the Vista Imaging System). All efforts to obtain these outstanding records should be documented. 2. After completing the above development, the AOJ should forward the entire claims file to an appropriately qualified independent physician for the purpose of preparing an advisory medical opinion pursuant to 38 U.S.C. § 5109. After completing a records review, the examiner should provide a written response to the following inquiries: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran has additional disability due to his radical perineal prostatectomy performed at the Detroit VA Medical Center (VAMC) in September 2011, to include lymphedema of the bilateral lower extremities? In providing this opinion, the examiner must address the Veteran's testimony during the March 2019 Board hearing in which he, as a medical professional, competently related his lower extremity lymphedema to perineal injury sustained during the September 2011 radical perineal prostatectomy. See, e.g., March 2019 Board Hearing Transcript, at 5. In addition, the examiner should consider the VA medical records that document assessments of lymphedema due to prostate surgery. See, e.g., March 2018 and May 2020 medical records. He or she should also consider the November 2020 VA examination report that noted a diagnosis bilateral venous insufficiency. In answering the questions below, the examiner should assume that the Veteran has an additional disability in the form of bilateral lower extremity lymphedema. (b) For any additional disability, is it at least as likely as not (50 percent probability or greater) that such additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA medical personnel? In providing this opinion, the examiner should address the Veteran's March 2019 Board hearing testimony that VA urologists informed him that there was a cut or damage to the lymphatic system where a surgical incision was made that affected his lower extremities. See March 2019 Board Hearing Transcript, at 10. The examiner should also address the Veteran's testimony that his physicians informed him that his lymphedema was related to the position that his legs were placed in during the surgery. See id. at 6. In addition, the examiner should consider a June 2014 VA primary care record, in which the Veteran alleged that the surgeon who performed his September 2011 surgery "cut the wrong part too short." (c) For any additional disability, notwithstanding any informed consent documents of record and based upon the specific facts and circumstances ot this Veteran's case, is it at least as likely as not (50 percent probability or greater) that the additional disability resulted from an event not reasonably foreseeable? (Continued on the next page) In determining whether an event is not reasonably foreseeable, the standard is what a "reasonable healthcare provider" would have considered to be an ordinary risk of treatment that would be disclosed in connection with informed consent procedures of 38 C.F.R. § 17.32, which requires the primary health care provider to explain the reasonably foreseeable risks associated with the surgery or treatment being provided. Complete rationale for all requested opinions shall be provided. If the physician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Wulff, 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.