Citation Nr: 22040157 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 18-53 725 DATE: July 13, 2022 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for an iatrogenic injury during cochlear implant surgery is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1953 to March 1955. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified at a video virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. 1. Entitlement to compensation under 38 U.S.C. § 1151 for an iatrogenic injury during cochlear implant surgery is remanded. Further development is necessary in this matter before the Board may reach a decision. At the Veteran's April 2021 hearing before the Board, the Veteran, his wife and his representative discussed medical treatment records and opinions from a private physician, Dr. P., and a physician's assistant, J.C. The representative described that Dr. P. had opined that VA medical professionals had committed errors during the cochlear implant procedure, which led to subsequent medical problems. See Hearing Transcript, pp. 12-16. A preliminary review of the claim file shows that these private medical records referenced at the hearing are not associated with the claim file. On remand, efforts should be made to obtain them. As an additional matter, the VA medical opinion regarding the Veteran's claim is inadequate. The examiner provided opinions that it was less likely than not that the Veteran's surgical injury was the result of VA's failure to follow the appropriate standard of care. However, the examiner's rationale does not address the Veteran's various assertions. Specifically, the Veteran has argued that the procedure was performed by a resident rather than the treating surgeon, contrary to what he was told prior to surgery; that the surgeon described a "surgical error" afterward when speaking with the Veteran's family; that the Veteran had informed VA of his double mastoid operation as a child; and that the surgical resident tearfully apologized to the family that he was "not informed" about the Veteran's prior mastoid problems, which led to the iatrogenic injury. At the time the VA opinion was rendered, the Veteran's arguments, and other lay evidence including contemporaneous notes taken by the Veteran's wife at the time of surgery were not associated with the claim file. The examiner's rationale only explained that the Veteran had been informed that certain complications could occur during the procedure. The remainder of the opinion focused on being unable to determine a baseline level of severity for the Veteran's symptoms. See July 2018 Compensation and Pension (C&P) Examination. It should be noted that VA medical records confirm the Veteran's contention that the treating surgeon was not present in the operating room when the injury occurred, as he was still scrubbing at that time. See May 2018 VA Medical Treatment Record, p.277 (March 22, 2018). On remand, the appropriate clinician should address whether this falls within the appropriate standard of care for this type of procedure. This matter is REMANDED for the following actions: 1. Contact the Veteran to obtain private medical records from Dr. P., and Ms. J.C., which were referenced during the hearing before the Board. Request that the Veteran submit these record or authorize VA to obtain them on his behalf. Associate such records, if acquired, with the claim file. 2. Arrange for a new independent medical opinion regarding the Veteran's 1151 claim from a medical professional with expert knowledge in the field of cochlear implant procedures. The clinician is to indicate review of the claim file, to include this Remand, to become familiar with the Veteran's relevant medical history. Then, please address the following: (a.) Is it at least as likely as not (approximately 50 percent or greater probability) that the Veteran sustained additional disability due to interoperative iatrogenic injury during his cochlear implant surgery? (b.) Is it at least as likely as not (approximately 50 percent or greater probability) that any such additional disability resulted from the attending VA personnel's failure to follow the appropriate standard of care? (c.) Is it at least as likely as not (approximately 50 percent or greater probability) that any such additional disability could not have reasonably been foreseen by a reasonable healthcare provider? (d.) Is it at least as likely as not (approximately 50 percent or greater probability) that the treating surgeon's absence from the operating room at the time of the iatrogenic injury due to "scrubbing up" is a failure to follow the appropriate standard of care? **The examiner's rationale should include consideration of the Veteran's lay statements and testimony at the April 2021 Board hearing, and the contemporaneous notes taken by the Veteran's wife on her cell phone (later transcribed) of her conversations with medical professionals on the day of surgery and during the Veteran's recovery. The examiner is asked, to the extent possible, to address the Veteran's contentions that the procedure was performed by a resident, contrary to what the Veteran was told prior to surgery; that the surgeon described a "surgical error" afterward when speaking with the Veteran's family; that VA was aware of his double mastoid operation as a child; and that the surgical resident tearfully apologized to the family that he was "not informed" about the Veteran's prior mastoid surgical history. See, e.g., 4/19/2021 Hearing Transcript; 5/21/2021 Medical Treatment Record Non-Gov't Facility.** A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are require), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hermsdorfer, 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.