Citation Nr: 22012832 Decision Date: 03/07/22 Archive Date: 03/07/22 DOCKET NO. 06-12 081 DATE: March 7, 2022 REMANDED Issue of entitlement to compensation under 38 U.S.C. § 1151 for residuals of a sternectomy is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1953 to August 1956 and January 1957 to January 1961. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2005 rating decision issued by the Department of Veterans Affairs (VA). See December 2005 Notice of Disagreement (NOD); March 2006 Statement of the Case (SOC); April 2006 Substantive Appeal (VA Form 9). This claim has a long appellate history before the Board. See December 2012 Board Decision; April 2015 Board Decision; May 2016 Board Decision; November 2016 Board Decision; August 2018 United States Court of Appeals for Veterans Claims (CAVC) Decision; April 2019 Board Decision; December 2020 Board Decision; August 2021 Board Decision. The Veteran also testified before a Veterans Law Judge in a July 2014 hearing. See July 2014 Hearing transcript. The Veteran was notified that the Veterans Law Judge who presided over the July 2014 hearing is no longer employed by the Board. December 2018 BVA-General. He offered an opportunity for another hearing before the Board with a different Veterans Law Judge, but the Veteran did not respond and it is presumed he did not desire an additional Board hearing. See December 2018 BVA-General; April 2019 Board Decision. The Board notes that the August 2021 Board decision granted the Veteran's claim of entitlement compensation under 38 U.S.C. § 1151 for brain injury residuals, to include seizure disorder, and denied his claims of entitlement to compensation under 38 U.S.C. § 1151 for numbness and tightness of the right hand, a left hip disability, and impotence. Those claims are, thus, no longer in appellate status before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(a)(2). Issue of entitlement to compensation under 38 U.S.C. § 1151 for residuals of a sternectomy is remanded. Unfortunately, another remand is required. In August 2018, CAVC remanded the claim to the Board to obtain a medical opinion that specifically addresses whether the 6-day delay between when the Veteran was first determined to have a sternum infection, and wound debridement was recommended, to his subsequent sternectomy was evidence of negligence. See August 2018 CAVC Decision. The CAVC decision noted that his treatment providers recommended wound debridement on April 5, April 6, April 7, April 8, and April 9, 2003. Id. Pursuant to the August 2018 CAVC decision, the December 2020 and August 2021 Board decisions remanded the claim for a medical opinion to specifically address the 6-day delay. In other words, CAVC and the Board requested a medical opinion that addresses if debridement or other treatment given 6 days prior to the Veteran's sternectomy would have lessened the infection progress and resulted in a better outcome, and if so, if this is evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault. The current claims file contains no medical opinion that adequately addresses this specific issue. For example, the February 2020 VA examiner opined that the sternectomy was necessary due to the Veteran's infection and found "no failure is noted" in timely diagnosis or treatment, but the opinion did not specifically address the 6-day delay and recommendations for debridement as directed by the Board. See February 2020 VA Examination Medical Opinion. The April 2021 and May 2021 VA examiners' opinions found the Veteran's sternectomy as a reasonably foreseeable risk of a coronary artery bypass graft (CABG), that proper testing and treatment was done for his wound infection, and there was no delay in the diagnosis and treatment for his sternal infection. See April 2021 VA Examination Medical Opinion; May 2021 VA Examination Medical Opinion; May 2021 VA Examination Medical Opinion. But the opinions do not specifically discuss the 6 day period between infection diagnosis and sternectomy, nor the early recommendations for debridement. See April 2021 VA Examination Medical Opinion; May 2021 VA Examination Medical Opinion; May 2021 VA Examination Medical Opinion. The Board finds that another opinion from a VA examiner is needed to specifically address the 6-day period between the when a sternal infection was diagnosed and the subsequent sternectomy, the recommendations for debridement, and whether the Veteran's sternal infection would have progressed to the same extent if debridement was performed earlier. The December 2020 and August 2021 Board decision also directed that a medical opinion be obtained to specifically reconcile the May 2020 medical opinion from infection disease expert W A S, M.D. with the VA examiners' opinions in the claims file. Dr. W A S opined that the Veteran's sternal wound infection was "definitely" an avoidable complication. May 2020 Email Correspondence. It is unclear if Dr. W A S's opinion that infection was definitely an avoidable complication supports that the Veteran's sternal wound infection was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault. The claims file does not contain a medical opinion that specifically address Dr. W A S's opinion, whether the Veteran's sternal infection was definitely avoidable, and, if so, if this is evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault. Finally, the Veteran asserts that March 2003 medical records showing white blood counts of .209 and .137 is evidence of his sternal wound infection prior to April 2003. See October 2020 Correspondence. The Veteran also asserts that he should have received blood work and proper wound care in an acute care unit given his age and medical history and should not have been transferred to a rehab facility after his CABG. See id. A VA examiner should consider the Veteran's statements and discuss whether it supports evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault. The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate medical professional regarding the Veteran's CABG, subsequent sternal wound infection, and sternectomy. The medical professional should review the evidence of the Veteran 2003 treatment involving chest pain, CABG, complications due to aortic tear, sternal wound infection, and sternectomy. The medical professional is asked to respond to the following: (a) Does the evidence show that VA failed to timely diagnose and properly treat the Veteran's sternal wound infection, which then caused its continuance or natural progression? In other words, would a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably have diagnosed the sternal wound infection, rendered similar treatment provided to the Veteran by VA, and would the Veteran's sternal wound infection or sternectomy been avoid? (b) In answering the above question, the medical professional should specifically consider and discuss the course of treatment provided beginning when the Veteran showed evidence of a sternal wound infection on April 3, 2003, to when he underwent his sternectomy on April 11, 2003. The medical professional should consider the Veteran's treatment providers' recommendations for wound debridement on April 5, April 6, April 7, April 8, and April 9; and whether debridement would have at least as likely as not prevented progression of the Veteran's sternal wound infection and his sternectomy. If so, the medical professional should opine as to whether this supports evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA. (c) The medical professional should also consider and discuss the May 2020 medical opinion from infection disease expert W A S, M.D. that the Veteran's sternal wound infection was "definitely" an avoidable complication. Does the medical professional agree that the sternal would infection was definitely avoidable? Provide detailed rationale and, if possible, citation to evidence in support. If the sternal wound infection was definitely avoidable, is this evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA? (d) The medical professional should consider the Veteran's lay statements that the March 2003 medical records showing white blood counts of .209 and .137 is evidence of his sternal wound infection prior to April 2003; and that he should not have been transferred to a rehab facility after his CABG, but instead have received blood work and proper wound care in an acute care unit given his age and medical history. 2. Readjudicate the claim. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lin 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.