Citation Nr: 22017637 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 18-42 701 DATE: March 25, 2022 REMANDED Entitlement to compensation for a left 5th finger disability under 38 U.S.C. § 1151 is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1962 to December 1966. This matter is on appeal of a December 2017 rating decision. In January 2021, a hearing was held before the undersigned. A transcript of the hearing is of record. The Board remanded the appeal for further development in March 2021. Unfortunately, the claim must again be remanded for additional development as the Board finds that there has not been substantial compliance with the March 2021 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not substantially complied with, the Board errs as a matter of law when it fails to ensure substantial compliance). The March 2021 remand noted a December 2017 VA opinion was inadequate for evaluation purposes as it did not provide opinions for all the possible additional disabilities identified in VA treatment records following the December 2016 VA surgery. The remand further noted that while the clinician providing the opinion stated that the additional disability was reasonably foreseen by the VA surgeon, she did not discuss the likelihood that the risk was discussed with the Veteran. The claim was remanded for an adequate opinion. Another VA opinion was obtained in August 2021. The VA physician provided an opinion for the additional disabilities identified as bony mallet deformity and swan neck deformity, indicating that these conditions were not caused by or became worse as a result of VA treatment, carelessness, negligence, lack of skill, or similar incidence of fault by attending VA personnel as appropriate protocols were followed and the standard of care was met in the case. The physician further opined that the additional disabilities did not result from an event that could not have reasonably been foreseen by a reasonable healthcare provider. As a rationale, the examiner stated that the Veteran did not seek medical care for more than 5 days following her initial injury and that a delay in treatment significantly reduces a favorable outcome in this type of injury. The Board finds that the August 2021 opinion is inadequate. Initially, the physician did not provide an opinion for the additional disability of a flexion contracture noted in a June 2017 VA treatment record. Moreover, the rationale provided for the bony mallet and swan neck deformities, did not discuss the Veteran's lay statements and testimony, as well as the written statements of two witnesses having personal knowledge submitted in February 2021, that her finger was straight prior to the December 2016 surgery and that she did not develop deformities until after the surgery, or address why the physician believed the Veteran's deformities were not unforeseeable or why the VA treatment did not allow the disabilities to continue or progress. Therefore, the claim must be remanded for another opinion. Stegall, 11 Vet. App. at 271. The matter is REMANDED for the following action: 1. Obtain and associate with the claims file updated VA treatment records from August 2021 to the present. 2. After completing the above, obtain an opinion from an appropriate clinician. Based on review of the pertinent evidence of record: (a) Identify all "additional disabilities" caused by the December 2016 left 5th finger operation, including bony mallet deformity, swan neck deformity and flexion contracture. The term "additional disability" means any condition that did not exist immediately before the Veteran's December 2016 orthopedic operation and subsequent treatment. The clinician must compare the Veteran's condition immediately before and after the December 2016 orthopedic operation. (b) For each additional disability identified, including bony mallet deformity, swan neck deformity and flexion contracture, is it at least as likely as not (approximately a 50 percent or greater probability) that such additional disability was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA? Specifically, in determining whether the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination, discuss if VA failed to exercise the degree of care that is expected of a reasonable health care provider. (c) For each additional disability identified in response to the above, including bony mallet deformity, swan neck deformity and flexion contracture, was the additional disability at least as likely as not (approximately a 50 percent or greater probability) caused by an event reasonably foreseeable? Specifically, the reviewing clinician is asked to state whether the additional disability was the type of risk that a reasonable health care provider would or would not have anticipated as a result of the care provided and that would have been disclosed in connection with the informed consent. A complete rationale for all opinions must be provided that addresses the Veteran's written statements and testimony that her current left 5th finger deformities were not present prior to the December 2016 VA surgery. 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 an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. J. Wells-Green 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.