Citation Nr: 22017642 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 18-20 261 DATE: March 25, 2022 REMANDED The issue of entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional disability resulting from an April 2011 percutaneous drainage of a pelvic abscess and perirectal drain placement, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1968 to February 1970. This matter is before the Board following his appeal of a July 2015 rating decision. The Board previously remanded this appeal in December 2019 and August 2020. Unfortunately, because all of the requested development was not completed, a remand is once again necessary. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand of the Board or the Court is not complied with, the Board errs as a matter of law when it fails to ensure compliance). Specifically, the Board finds that the opinions obtained from two separate examiners pursuant to the prior remand are still inadequate. An October 2021 examiner noted a lack of evidence and responded to each question posed with "not known" or otherwise indicated that an opinion would be speculative. A subsequent January 2022 opinion essentially concluded that there was no fault on the part of VA because the Veteran signed the informed consent form that discussed the risks and agreed to the procedure, and because "one cannot predict what negatives will come about." There was no discussion of the complications the Veteran experienced, as requested, or whether any of the complications were a foreseeable risk. In this regard, informed consent does not necessarily cover risks that a reasonable health provider would not have considered to be an ordinary risk of the procedure. Given the foregoing and considering the complex nature of the Veteran's 1151 claim, the Board finds that a non-VA expert opinion should be obtained. The matter is REMANDED for the following action: 1. Notify the Veteran and his representative that VA is requesting an advisory medical opinion pursuant to 38 U.S.C. § 5109 regarding entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional disability resulting from an April 2011 percutaneous drainage of a pelvic abscess and perirectal drain placement. 2. Then, pursuant to 38 U.S.C. § 5109, forward the Veteran's claims file to a non-VA, independent medical expert (i.e., neither a VA examiner nor a VA contract examiner) in the field of general surgery. If such a specialist is unavailable, the file must be documented to this effect, with an explanation as to why. The entire claims file, including a copy of this Remand and the prior December 2019 Remand, must be made available to, and reviewed by the expert. The expert should then address the following: a) Identify all currently diagnosed rectal disabilities (including fistulas or abscesses). In doing so, the examiner should note that the term "current" means occurring at any time during the pendency of the Veteran's claim (i.e., from 2014 onward). The disorder need not be present at the time of the examination; rather it is sufficient if it previously existed during the pendency of the claim (beginning in June 2014) and then resolved prior to the examination. (b) With respect to each diagnosed disorder, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that such was caused by or contributed to by the Veteran's April 2011 VA surgeries. Please explain why or why not. Note: In providing this opinion, the examiner should comment on the significance, if any, of the Veteran's complaints of pain, drainage, the peristent fistulas/abscesses that have continued since the surgery despite drain placements, and the need for additional surgeries. (c) If the surgery caused or contributed to an identified disorder, what is the likelihood that there was carelessness, negligence, lack of proper skill, error in judgment or similar instances of fault on VA's part in performing this surgery? (d) If the surgery caused or contributed to an identified disorder, was the disorder an event not reasonably foreseeable? In answering this question, the examiner is asked to consider whether the disorder resulting from the abscess drainage and drain placement was a risk that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided not what the treating physicians might have actually foreseen in treating the Veteran. Note: In providing the opinion, the examiner should also address the various references to complications and "the extent of his complications" in June 2011; and the Veteran's "very complicated surgical history" related to his rectal cancer noted in December 2014. A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.) 3. Following receipt of the requested opinion, furnish a copy of the opinion to the Veteran and his representative and allow them an adequate time to submit any response. S. C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Fagan 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.