Citation Nr: 21032056 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 13-07 024 DATE: May 25, 2021 REMANDED Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for right femoral osteomyelitis is remanded. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for a right hip disability is remanded. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for a right knee disability is remanded. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran had active service from May 1968 to February 1971. The Veteran appeared at an October 2014 videoconference hearing before a Veterans Law Judge. The hearing transcript is of record. The Veterans Law Judge who conducted the October 2014 hearing retired and the Veteran requested an additional hearing. The Veteran appeared at a June 2019 hearing before a Veterans Law Judge sitting at the St. Paul, Minnesota, Regional Office. The hearing transcript is of record. In January 2021, the Veteran was notified that the Veterans Law Judge who conducted the June 2019 hearing had retired and he had the right to another Board hearing. In February 2021, the Veteran indicated that he did not want an additional hearing. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for right femoral osteomyelitis, a right hip disability, a right knee disability, and a lumbar spine disability is remanded. The Veteran asserts that compensation under the provisions of 38 U.S.C. § 1151 for right femoral osteomyelitis, a right hip disability, a right knee disability, and a lumbar spine disability is warranted as 1971 surgical procedures at the Minneapolis, Minnesota, Department of Veterans Affairs (VA) medical center to repair a fractured right femur were conducted in an improper manner and resulted in him developing chronic osteomyelitis. Compensation under the provisions of 38 U.S.C.A. § 1151 shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. A disability is a qualifying additional disability if (1) the disability was not the result of the veteran's willful misconduct; (2) was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA either by a VA employee or in a VA facility; and (3) the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. 38 U.S.C.A. § 1151. In adjudicating claims received on or after October 1, 1997, it is necessary to make several factual determinations as set forth in 38 C.F.R. § 3.361. To determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. Claims based on additional disability due to hospital care, medical or surgical treatment, or examination must meet the certain causation requirements. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. Additional disability caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. The proximate cause of disability is the action or event that directly caused the disability as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability and VA either failed to exercise the degree of care that would be expected of a reasonable health care provider or VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32 (b) as in emergency situations. Whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is in each claim 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 the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361. The report of an undated VA medical opinion requested by the Agency of Original Jurisdiction and received in October 2020 concurrently states that the Veteran sustained a right femur fracture in 1971 which necessitated internal fixation; "the performance of the initial procedures was top notch as Veteran went on for decades without any symptoms;" underwent removal and replacement of the internal hardware in 1980 due to chronic osteomyelitis; "based on the medical records, there is no evidence of negligence by any healthcare provider or the VAMC;" and "the standard of care was upheld to the highest level." Given the conflicting findings as to the results of the 1971 VA surgical procedures, the Board finds that the evaluation is of essentially no probative value. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that further VA evaluation is necessary. The Veteran's written consent to the 1971 VA surgical procedures are not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records not already of record, including all consent documentation associated with the 1971 VA surgical procedures. 2. Schedule the Veteran for a VA examination in order to assist in determining the nature and etiology of his recurrent right lower extremity disabilities. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should: (a) Diagnose all right femoral, right hip, and right knee disabilities found. (b) Opine as to whether it is as likely as not (i.e., probability of 50 percent or more) that any identified right femoral, right hip, and right knee disabilities are etiologically related to the Veteran's treatment at the Minneapolis, Minnesota, VA Medical Center in 1971. (c) If any identified right femoral, right hip, and right knee disabilities are determined to be related to VA treatment, the examiner should opine whether it is as likely as not (i.e., probability of 50 percent or more) that the proximate cause of such disability was either carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or an event not reasonably foreseeable. 3. Schedule the Veteran for a VA examination in order to assist in determining the nature and etiology of his recurrent right lower extremity disabilities. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should: (a) Diagnose all lumbar spine disabilities found. If no lumbar spine disability is identified, the examiner should specifically state that fact. (b) Opine as to whether it is as likely as not (i.e., probability of 50 percent or more) that any identified lumbar spine disability is etiologically related to the Veteran's treatment at the Minneapolis, Minnesota, VA Medical Center in 1971. (c) If identified lumbar spine disability determined to be related to VA treatment, the examiner should opine whether it is as likely as not (i.e., probability of 50 percent or more) that the proximate cause of such disability was either carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or an event not reasonably foreseeable. J. T. HUTCHESON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.E. Lee 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.