Citation Nr: 22036005 Decision Date: 06/22/22 Archive Date: 06/22/22 DOCKET NO. 15-37 905 DATE: June 22, 2022 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for a right lower extremity disability as the result of VA surgical procedure on July 6, 1999 is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1968 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This issue has a long procedural history. It was most recently remanded by the Board in September 2021 and has been returned for further adjudication. Although the Board regrets additional delay, remand is necessary to obtain an addendum opinion. In March 2022, a VA examiner opined that VA diagnosis and treatment was appropriate and timely, accepted appropriate protocols were followed, and the standard of care was met in this case. It is less likely than not the claimed condition was caused by or became worse as a result of the VA treatment, additional disability from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel or additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider, and/or failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. After thorough review of the C-File and the dermatology, orthopedic clinic and emergency department visits on July 6th and 7th 1999, all surgical risks, informed consents and after care instructions were discussed with the patient before and after his nevus removal by excisional biopsy on July 6th, 1999, and protocols were followed at the Greater Los Angeles VAMC. The patient slipped after his excisional biopsy on and had an inversion injury to the right ankle documented by the orthopedic clinic and emergency department. It was recommended to follow up in dermatology two weeks. There was no documented dermatology clinic visit in the C-File. This right ankle post-surgical injury was not the fault of the surgeon who performed the excisional biopsy on the right lateral calf as the patient slipped while trying to ambulate (while he was still having numbness after local anesthesia, and he suffered an inversion injury to the right ankle). He was appropriately splinted and provided crutches. He also stated he was regaining motor function and was "doing better now." There is no evidence that this post-surgical injury was as likely as not to cause any additional disability from the July 1999 surgery nor was it the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part (i.e., VA did not fail to exercise the degree of care that would be expected of a reasonable healthcare). A reasonable healthcare provider could not foresee this right ankle accidental injury occurring within 24 hours of an excisional biopsy. The Board finds that this opinion does not adequately address the Veteran's contention. The Veteran is not contending that the right ankle injury was the result of the post-surgical right ankle injury, but that he suffered from additional nerve damage as a result of the nevus removal in 1999. The examiner failed to address whether the claimed nerve damage was an additional disability caused by the July 1999 surgical procedure; if an additional nerve disability from the procedure was the proximate cause by negligence, carelessness, lack of proper skill, error in judgement, or similar instance of part by VA; and if any additional nerve disability from the procedure was reasonably foreseeable as an ordinary risk of treatment that would be disclosed with informed consent. As such, remand is necessary to obtain an addendum opinion. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to treatment for his right lower extremity disability. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. Obtain a medical opinion from a dermatologist. The entire claims file must be made available to the examiner for review. The examiner is asked to provide opinions on the following issues: (a.) Whether the Veteran has an additional disability or residuals from the VA dermatological surgery performed in July 1999? (b.) The examiner should note that an "Additional disability" is determined by comparing the Veteran's condition immediately before the beginning of treatment to the Veteran's condition after such care-and each involved body part must be considered separately. 38C.F.R. §3.361. (c.) Whether any additional disability from the July 1999 surgery was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part (i.e. did VA fail to exercise the degree of care that would be expected of a reasonable healthcare provider)? (d.) Based upon the specific facts and circumstances of this Veteran's case, were the Veteran's claimed symptoms and residuals a reasonably foreseeable outcome of the July 1999 surgical procedure? (e.) In rendering these opinions for compensation under 38 U.S.C. § § 1151, the examiner should address whether a "reasonable health care provider" would have considered the Veteran's claimed additional disabilities to be an ordinary risk of the treatment provided and would have disclosed such risk related to the treatment, regardless of what risks the treating physician foresaw and disclosed in the informed consent forms. (f.) The examiner should specifically address the Veteran's statements and the findings made by the July 2015 and May 2021 VA examinations. (g.) The examiner is also advised that the Veteran is competent to report symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. (h.) The examiner should provide a complete rationale for any opinions provided with discussion of the facts particular to the Veteran's case. If the examiner is unable to provide any opinion request, then the examiner should state so and why. (i.) If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If utilizing references within the electronic claims file, the examiner should clearly provide an identifier. (Continued on the next page) (j.) If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. (k.) If the VA examiner is unable to provide an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided; or he or she should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. H. 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.