Citation Nr: 22016000 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 09-19 098 DATE: March 21, 2022 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for worsening of right leg peripheral vascular disease due to a Department of Veterans Affairs (VA) surgical procedure in January 2004 is remanded. REASONS FOR REMAND The Veteran had active service from March 1969 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by a VA Agency of Original Jurisdiction (AOJ). The Veteran testified at a Board hearing in April 2011 and a copy of the transcript is in the claims file. In February 2022, the Veteran was notified that the Veterans Law Judge (VLJ) who conducted the hearing was no longer employed by the Board, and he was offered another hearing before a different VLJ. The Veteran did not reply to the notification. Therefore, the Board finds that another hearing is not warranted in this appeal. The Board acknowledges the lengthy procedural history of this appeal, which includes a May 2012 Board decision, which was subsequently vacated by the United States Court of Appeals for Veterans Claims (CAVC or Court) in December 2013. Then, in September 2020, the Court vacated a June 2018 Board decision denying entitlement to compensation under 38 U.S.C. § 1151. The case was remanded to the AOJ for additional development in May 2021. Unfortunately, as explained below, further development is required. The Board sincerely apologizes for any additional delay in rendering a decision for this claim on appeal. However, to ensure the Veteran is afforded every opportunity to substantiate his claim, another remand is required. The Board is obligated to ensure AOJ compliance with remand directives. Stegall v. West, 11 Vet. App. (1998). Most recently, in May 2021, the Board remanded this case to the AOJ to obtain a medical opinion addressing whether the Veteran had additional disability after the January 2004 surgery. Remand directives required a medical opinion addressing certain evidence in the claims file. Specifically, an examiner was to address whether the right thigh swelling, abnormal gait, or peripheral neuropathy noted in October 2005 private records constituted additional disability caused by the surgery. The examiner was also to address whether occluded bypass graft and abnormal gait or any other claimed disability would have been disclosed prior to surgery. The resulting August 2021 VA medical opinion regarding additional disability discussed "numbness" and worsening of the Veteran's peripheral vascular disease, but did not otherwise address the evidence as outlined in the Board remand directives. Therefore, another remand is required. The matters are REMANDED for the following action: 1. Obtain a supplemental opinion from a VA physician regarding the Veteran's claim for compensation benefits for right lower extremity disability. The Veteran's record should be reviewed. If the examiner determines that he or she cannot respond to the Board's inquiry as set forth in detail below without examination of the Veteran, the Veteran should be afforded such an examination. If an in-person examination cannot be conducted, an examination by other means must be offered. The examiner should respond to the following questions: (a.) With regard to the January 2004 surgery of the right leg at issue, is it at least as likely as not (an approximate balance of positive and negative evidence) that the Veteran sustained any additional disability as a result of the surgery? In responding, the examiner should address whether the Veteran's documented abnormal gait and peripheral neuropathy are additional disability after the surgery. The examiner must address: (1) symptoms, findings, and diagnoses documented after the January 2004 surgery, including abnormal gait; (2) whether the occluded bypass graft diagnosed in April 2004 is an additional disability of the right leg resulting from the January 2004 surgery; (3) the private medical records from Memorial Medical Center dated in October 2005, which show right thigh swelling due to imprecise reapproximation of the soft tissues during surgery, right lower extremity neuropathy secondary to surgery, and mild peripheral vascular disease of the right lower extremity. (b.) If there was additional disability caused by or the result of the January 2004 surgery, was it at least as likely as not (an approximate balance of positive and negative evidence) the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care or medical or surgical treatment? (c.) If there was additional disability caused by or the result of the January 2004 surgery, did VA fail to exercise the degree of care that would be expected of a reasonable healthcare provider? (d.) And, was the proximate cause of any additional disability not reasonably foreseeable? The examiner must address whether abnormal gait, worsening of peripheral vascular disease, or peripheral neuropathy of the right lower extremity is the type of risk that would have been disclosed in connection with informed consent procedures. A complete explanation for all opinions expressed must be provided. A clearly stated rationale must not be based solely on lack of documentation or records. The reasons for any opinion must include a discussion of the relevant evidence and medical principles. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, 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.