Citation Nr: 21028708 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 09-19 098 DATE: May 11, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for worsening of right leg peripheral vascular disease due to a Department of Veterans Affairs (VA) surgical procedure in January 2004 is remanded. REASONS FOR REMAND The Veteran had active duty service from March 1969 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by a VA Agency of Original Jurisdiction (AOJ). In September 2020, the United States Court of Appeals for Veterans Claims (CAVC or Court) vacated a June 2018 Board decision denying entitlement to compensation under 38 U.S.C. § 1151. The case has been remanded to the Board. In accordance with the Court's decision, the case must be remanded to the AOJ. 1. Entitlement to compensation under 38 U.S.C. § 1151 for worsening of right leg peripheral vascular disease due to a VA surgical procedure in January 2004 is remanded. The Board is obligated to ensure AOJ compliance with remand directives. Stegall v. West, 11 Vet. App. (1998). In September 2016, the Board remanded this case to the AOJ to obtain a medical opinion addressing certain evidence in the claims file. Specifically, an examiner was to provide an opinion regarding additional disability after the Veteran's January 2004 surgery considering documented occluded bypass graft diagnosed in April 2004 and the private medical records showing right thigh swelling in October 2005. The examiner was also to address whether occluded bypass graft and abnormal gait or any other claimed disability would have been disclosed prior to surgery. The resulting October 2017 opinion provided a conclusory opinion regarding additional disability and did not address this evidence as outlined in the Board remand. Therefore, another remand is required. The matters are REMANDED for the following action: 1. Obtain a supplemental opinion from a VA physician regarding the Veteran's claim for compensation benefits for right lower extremity disability. The Veteran's record should be reviewed. If the examiner determines that he or she cannot respond to the Board's inquiry as set forth in detail below without examination of the Veteran, the Veteran should be afforded such an examination. If an in-person examination cannot be conducted, an examination by other means must be offered. The examiner should respond to the following questions: (a.) With regard to the January 2004 surgery of the right leg at issue, is it at least as likely as not (a 50 percent or greater probability) that the Veteran sustained any additional disability as a result of the surgery, including abnormal gait and occluded bypass graft? (b.) Is it at least as likely as not (a 50 percent or greater probability) that the January 2004 surgery caused worsening of the Veteran's preexisting peripheral vascular disease of the right lower extremity, beyond the natural progression of the condition? (c.) In answering questions (a) and (b) above, the examiner must address: (1) symptoms, findings, and diagnoses documented after the January 2004 surgery, including abnormal gait; (2) whether the occluded bypass graft diagnosed in April 2004 is an additional disability of the right leg resulting from the January 2004 surgery; (3) the private medical records from Memorial Medical Center dated in October 2005, which show right thigh swelling due to imprecise reapproximation of the soft tissues during surgery, right lower extremity neuropathy secondary to surgery, and mild peripheral vascular disease of the right lower extremity. (d.) If there was additional disability caused by or the result of the January 2004 surgery, was it at least as likely as not (50 percent probability or greater) the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care or medical or surgical treatment? (e.) Did VA fail to exercise the degree of care that would be expected of a reasonable healthcare provider? (f.) And, was the proximate cause of any additional disability not reasonably foreseeable? (g.) The examiner must address whether any additional disability of the right lower extremity is the type of risk that would have been disclosed in connection with informed consent procedures. A complete explanation for all opinions expressed must be provided. A clearly stated rationale must not be based solely on lack of documentation or records. The reasons for any opinion must include a discussion of the relevant evidence and medical principles. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, 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.