Citation Nr: 21032403 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-40 158 DATE: May 27, 2021 REMANDED Compensation under the provisions of 38 U.S.C. § 1151 for left lower extremity sciatic nerve damage. REASONS FOR REMAND The Veteran served on active duty from February 1971 to May 1971. The case is on appeal from an April 2017 rating decision. The case was most recently before the Board in February 2020. At that time, the Board remanded the present matter for further development. Compensation under the provisions of 38 U.S.C. § 1151 for left lower extremity sciatic nerve damage. In its February 2020 decision, the Board remanded the present appeal to (1) obtain a copy of the original informed consent signed by the Veteran with respect to the left hip replacement procedure performed on January 10, 2014; (2) to obtain updated VA medical records; and (3) to secure an advisory medical opinion from a medical expert who is not a VA employee pursuant to the provisions set forth in 38 U.S.C. § 5109. While the RO obtained a copy of the original informed consent signed by the Veteran and updated the Veteran's VA treatment records, the Board notes that the provisions set forth in 38 U.S.C. § 5109 with respect to an independent expert's medical opinion were not substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). First, the Board requested an advisory medical opinion from an "independent medical expert." To comply with the foregoing, the Board requested an opinion from an orthopedic surgeon or neurologist who can comment on the etiology and nature of the Veteran's sciatic nerve damage and clarify the conflicting medical evidence as to whether sciatic nerve damage is a common complication in hip surgeries vs. nerve injury is a relatively rare, yet potentially devastating complication of total hip arthroplasty (THA) with an incidence that ranges from 0.6% to 3.7% with a higher predisposition in patients with developmental hip dysplasia and previous hip surgery. While an opinion was obtained in May 2020, it was issued by a General Practice Doctor in Osteopathy (DO). Although the May 2020 medical professional may have some competence to provide an opinion, the evidence does not reflect that his practice expertise is in the field of orthopedic surgery or neurology. In addition, 38 U.S.C. § 5109(c) provides that VA shall furnish a claimant with notice that an advisory medical opinion has been requested under this section and shall furnish the claimant with a copy of such opinion when it is received. A review of the Veteran's claims file does not only show that the Veteran was not notified prior to the request of such opinion, but that a copy of the opinion was neither mailed to the Veteran once it was received. A remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. Where the remand orders are not complied with, the Board errs in failing to insure compliance. Stegall, 11 Vet. App. 268. Because there was not substantial compliance with the February 2020 remand instructions, the Board is compelled to remand the appeal for appropriate development as set forth above, and further adjudicatory consideration. For the reasons set forth above, the Board finds that a remand is warranted to obtain an independent advisory medical opinion from a physician who is a medical expert in the orthopedic surgery or neurology fields, and who is not a VA employee. See 38 U.S.C. § 5109(a). The medical opinion should address the extent, nature, and etiology of the Veteran's claimed disability. In light of the remand, updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records dated since July 2020. 2. Thereafter, obtain an independent medical expert opinion, from an orthopedic surgeon or neurologist, who is not a VA employee, pursuant to 38 U.S.C. § 5109(b). The claims file should be made available to and reviewed by the designated independent physician. The expert should provide medical opinions as to the following: (i) Whether it is at least as likely as not (50 percent or greater probability) that there was additional disability as a result of the January 2014 left hip replacement, including any left leg sciatic nerve damage. (ii) If additional disability is found, provide an opinion as to whether it is as likely as not (50 percent or greater probability) that the additional disability was the result of (a) carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA, or (b) an event that was not reasonably foreseeable. An event not reasonably foreseeable 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. Consideration should be given to: (1) The Veteran's statements as to the onset of the disability immediately following the left THA; (2) VA treatment records reflecting the onset of symptoms immediately following the left THA; (3) the Veteran's representative statement's indicating that the Veteran "should have had no movement from the anesthesia he was under;" and (4) the conflicting medical evidence indicating that sciatic nerve damage is a common complication in hip surgeries vs. nerve injury is a relatively rare, yet potentially devastating complication of total hip arthroplasty (THA)with an incidence that ranges from 0.6% to 3.7% with a higher predisposition in patients with developmental hip dysplasia and previous hip surgery. A complete rationale should be provided for any opinion reached. 3. Furnish the Veteran with a copy of such opinion when it is received pursuant to 38 U.S.C. § 5109(c). RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan, 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.