Citation Nr: 22003013 Decision Date: 01/20/22 Archive Date: 01/20/22 DOCKET NO. 16-07 777 DATE: January 20, 2022 REMANDED Entitlement to compensation benefits, pursuant to the provisions of 38 U.S.C. § 1151 for herniated disc is remanded. Entitlement to compensation benefits, pursuant to the provisions of 38 U.S.C. § 1151 for radiculopathy with foot drop, left lower extremity, is remanded. REASONS FOR REMAND The Veteran had active duty in the United States Air Force from July 1964 to July 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified at a Board hearing. The Veteran's claims file contains a copy of the hearing transcript. In a January 2019 decision, the Board denied the Veteran's claims. In pertinent part, the Board found that the weight of competent medical evidence was that the Veteran's herniated disc and radiculopathy with foot drop, left lower extremity were not proximately caused by VA clinicians' improper treatment (or lack thereof), and were not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA clinicians in furnishing medical or an event not reasonably foreseeable. In June 2021, the Veteran appealed the June 2020 Board decision to the United States Court of Appeals for Veteran's Claims (Court), which resulted in a Memorandum Decision Discussion In the Memorandum Decision, the Court found that the Board erred in failing to return an October 2014 VA orthopedic surgeon's opinion for clarification. Specifically, the Court indicated that this VA clinician failed to note that the Veteran first complained to VA of symptoms of a herniated disc and left foot drop on September 16, 2013. The Veteran has alleged that VA's "failure to schedule an operation within 45 days" of the September 16, 2013 complaint resulted in a permanent foot drop. The VA orthopedic surgeon who rendered the opinion failed to address whether the September 16, 2013 VA treatment note was written in such a way as to convey that the Veteran's right foot drop required immediate medical (presumably surgical) attention. Moreover, the Court indicated that the VA orthopedic surgeon's point remains unclear as to how the Veteran's availing himself of private treatment absolved VA of alleged mishandling of the foot drop disability. In an April 11, 2018 opinion, a private consultant cited a medical handbook for the conclusion that acute foot drop is an emergent surgical condition and is an indication for rapid decompression." Considering the Court's underscoring of the oversights a lack of clarity in the October 2014 VA orthopedic surgeon's opinion, a fully informed opinion is in order to allow the Board to make a fully informed decision of the Veteran's two 38 U.S.C. § 1151 claims. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). The matters are REMANDED for the following actions: 1. Contact the Veteran and his representative to ascertain whether there are outstanding private records related to the two issues noted above including any regarding the injury on his job (workman's' compensation) mentioned in the initial VA treatment records. If so, prepare releases, obtain the records, and associate the records with the claims file. The RO must make two attempts to obtain these relevant records unless the first attempt demonstrates that further attempts would be futile. Should VA not obtain any private records (as indicated), the RO must (1) inform the Veteran of the unobtained records (2) tell the Veteran steps taken to obtain them, and (3) tell the Veteran that the claim will be adjudicated without the records. See 38 U.S.C. § 5103A(b)(2)(B). 2. Obtain any outstanding VA treatment records, progress notes and associate the records with the claims file. 3. Upon completion of the above, arrange for an opinion with an appropriate clinician with expertise in the field of orthopedics and associated neurological symptoms. The selected clinician must review the entirety of the claims file and indicate such review in the body of the opinion. Attention is called to the VA outpatient records starting in September 2013, records of subsequent private care, VA opinion in October 2014, and private record review in April 2018 and opinion dated in July 2018. The clinician must address with great specificity the points discussed above and in the June 2021 Memorandum Decision in the formulation of the opinion. The clinician must respond to the following inquiries: a. Did the Veteran incur additional disabilities or worsened herniated disc and/or radiculopathy with foot drop, left lower extremity as a result of VA procedures; deferral of procedures; or insufficient (urgent) medical care including whether there was negligent evaluation of foot drop such that immediate surgery or other care was needed and whether there was delay by VA in providing this care that proximately caused a permanent foot drop or the delay of care prevented prompt correction to avoid permanent foot drop. b. If the Veteran had additional disabilities or worsened herniated disc and/or radiculopathy with foot drop, left lower extremity did such result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA? c. If the Veteran has additional disability was caused or made worse by VA treatment, notwithstanding any informed consent documents of record, based upon the specific facts and circumstances of this Veteran's case, was any additional disability a reasonably foreseeable outcome of any VA treatment (or lack thereof)? In rendering this opinion, the clinician should address whether a "reasonable health care provider" would have considered the Veteran's additional disability to be an ordinary risk of the treatment provided, deferral of treatment, or insufficient of medical notations would have disclosed such risk in connection with the treatment, regardless of what risks the treating physician actually foresaw and disclosed in the informed consent forms. In answering the above questions, the examiner should consider the Veteran's VA treatment records and private medical records and the opinions cited above. A detailed explanation (rationale) is requested for all opinions provided. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.