Citation Nr: 22015185
Decision Date: 03/16/22	Archive Date: 03/16/22

DOCKET NO. 17-48 369
DATE: March 16, 2022

REMANDED

Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for right fourth toe amputation residuals is remanded.

REASONS FOR REMAND

The Veteran had active service from February 1972 to February 1976 and from March 1976 to April 1994.

Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for right fourth toe amputation residuals is remanded.  

Unfortunately, another remand is required in this case.  Although the Board of Veterans' Appeals (Board) sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim.  

In its October 2021 Remand instructions, the Board of Veterans' Appeals (Board) directed that the Veteran be afforded further Department of Veterans Affairs (VA) evaluation to determine whether VA medical personnel at the Binghamton, New York, VA Community-Based Outpatient Clinic failed to properly treat a right foot injury, which gave rise to residual complications including a right fourth toe amputation and right leg vascular surgery.  The Board directed that the evaluation was to be conducted by a physician.  

A November 2021 VA evaluation states that the evaluation was conducted by a physician assistant.  The examiner concluded that "it is not it is at least as likely as not (a 50 percent or greater probability) that the Veteran has any additional right foot disability or disabilities caused or worsened by VA's medical care."   

The Agency of Original Jurisdiction's compliance with the Board's remand instructions is neither optional nor discretionary.  Stegall v. West, 11 Vet. App. 268 (1998).  

This matter is REMANDED for the following action:

Refer the claims records to a VA medical doctor who has not previously provided an opinion in this case to assist in determining the nature and severity of all identified recurrent right foot disabilities, and their relationship, if any, to VA treatment.  A rationale for all opinions rendered should be provided.  The examiner should:

(a)	Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran has any additional disability caused or worsened by medical care provide at the Binghamton, New York, VA Community-Based Outpatient Clinic.  If so, the physician must identify the additional disability.  

(b)	Opine whether any identified additional disability was proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of VA in furnishing the hospital care, medical or surgical treatment.  

(c)	Opine whether it is at least as likely as not (50 percent or greater probability) that any additional disability was proximately caused by a treatment-related event that was not reasonably foreseeable.  An event not reasonably foreseeable is to be determined based on what a reasonable health care provider would have foreseen. The causal 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.  

  

 

J. T. HUTCHESON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	H. Marsdale

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.