Citation Nr: 21030922 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-48 659 DATE: May 20, 2021 REMANDED Entitlement to compensation pursuant to 38 U.S.C. § 1151 for left leg nerve damage is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from December 1976 to February 1981. This matter is on appeal from an August 2013 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in October 2019. A transcript of the hearing is of record. Although the Board regrets further delay, additional development is necessary prior to adjudicating the Veteran's claim. 1. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for left leg nerve damage is remanded. The Veteran contends that he is entitled to compensation under 38 U.S.C. § 1151 for left leg nerve damage caused by an orthopedic surgical procedure performed in March 2010 at the VA Medical Center (VAMC) in Baltimore, Maryland. The Veteran specifically contends that he suffered nerve damage in the left hip surgery which resulted in left leg peroneal neuropathy. He has stated that the condition causes him to have chronic pain, difficulty walking and trouble performing daily tasks. Under 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability or death in the same manner as if such additional disability or death were service connected. For purposes of this section, a disability or death is a qualifying additional disability if (1) the disability or death was not the result of the veteran's willful misconduct, (2) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under the law administered by VA, and (3) the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination, or (B) an event not reasonably foreseeable. See 38 U.S.C. § 1151; 38 C.F.R. § 3.361. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in a veteran's additional disability or death. Merely showing that a veteran received care and has an additional disability does not establish cause. See 38 C.F.R. § 3.361(c)(1). Whether the proximate cause of a claimant's additional disability or death was an event not reasonably foreseeable is to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with informed consent procedures. 38 C.F.R. §§ 3.361(d)(2), 17.32. VA treatment records show that the Veteran underwent a left hip replacement in March 2010 at the Baltimore VAMC. In August 2010, the Veteran sought treatment at the Baltimore VAMC for left foot drop. A sensory nerve conduction study was performed, and the results suggested left peroneal neuropathy which the VA examiner characterized as "relatively severe" and stated the condition was likely related to the Veteran's March 2010 left hip surgery. In March 2011, the Veteran was assessed again following continued reports of tingling in his left foot which progresses up his leg and becomes sharper if he does not take his medication. A diagnosis of left leg neuropathy was confirmed. VA treatment records confirm that the Veteran continues to take medication regularly to manage his left leg peroneal neuropathy. A VA medical opinion was obtained on the Veteran's behalf in July 2013. After review of the Veteran's medical records, the VA examiner determined that the Veteran's VA medical treatment less likely than not caused his left leg peroneal neuropathy. Instead, the VA examiner opined that the left leg peroneal neuropathy was due to his diabetes mellitus and therefore it is not likely that the claimed disability was caused by or became worse as a result of from carelessness, negligence, lack of skill or similar incidence of fault on the part of the attending VA personnel and that the additional disability results from an event that could not have been reasonably foreseen by a reasonable healthcare provider. The Board notes that the July 2013 VA examiner did not address the Veteran's contentions that he did not have any left leg neuropathy symptoms prior to undergoing surgery, and that he developed symptoms soon after, which continue to the present. Moreover, the examiner did not address pertinent VA medical records which clearly document that the Veteran suffered nerve damage that VA medical providers attribute to his March 2010 left hip surgery. Instead, the examiner attributed the Veteran's left leg nerve pain solely to the Veteran's diabetes. Because the examiner formulated an opinion without properly considering the Veteran's lay statements, the Board finds the July 2013 medical opinion inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Once VA undertakes the effort to provide an examination or medical opinion when developing a claim for compensation, even if not statutorily obligated to do so, it must provide one that is adequate for the purposes of the determination being made. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, the Board finds that remand is required to obtain a new medical opinion before the Board can render an informed decision on the Veteran's claim. Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). The matters are REMANDED for the following action: 1. Obtain a VA medical opinion from a medical professional of appropriate expertise with regard to the Veteran's 38 U.S.C. § 1151 claim for nerve damage to the left leg due to a March 2010 left hip surgery. The Veteran's entire claims file, to include a copy of this REMAND, must be provided to the examiner and reviewed in full. That review must be noted in the report. Thereafter, the examiner is asked to respond to the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's left leg peroneal neuropathy (i.e. "additional disability"), were proximately caused by his March 2010 left hip surgery? (b) If such additional disability was sustained, it is at least as likely as not (a 50 percent or greater probability) that the Veteran's additional disability was due to 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? Or, (c) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's additional disability was a reasonably foreseeable outcome of surgical treatment based upon the specific facts and circumstances of the Veteran's case? The examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The requested opinion must consider and specifically address: the Veteran's contention that after the Veteran underwent left hip surgery in March 2010, he developed pain, numbness, and weakness in the left leg that continues to the present; and the VA medical records from August 2010 to the present showing that following the hip procedure, the Veteran developed and received treatment for peroneal neuropathy of the left leg. The examiner is advised that the Veteran is competent to report his medical history, including when he had an onset of symptoms, and such reports must be acknowledged and considered in formulating any opinion. The examiner must provide a complete medical rationale for any opinion expressed, citing to the examiner's own expertise, medical literature, and/or evidence in the claims file when necessary. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rosenthal, Ariana 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.