Citation Nr: 23011997 Decision Date: 02/27/23 Archive Date: 02/27/23 DOCKET NO. 18-48 518 DATE: February 27, 2023 REMANDED Entitlement to compensation under 38 C.F.R. § 1151 for residuals of right index finger surgery claimed to have resulted from VA medical treatment is remanded. Entitlement to service connection for bilateral lower extremity neuropathy to include the feet is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from August 1969 to August 1973, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO). For the reasons that follow, the Board finds that additional evidentiary development is required prior to appellate adjudication of the appeal. Negligence Claim under 38 C.F.R. § 1151 The Veteran claims entitlement to compensation under the provisions of 38 U.S.C. § 1151. Specifically, he asserts that the treatment protocol by VA physicians pertaining to his right index finger constituted carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault on the part of the VA and resulted in additional disabilities of the right index finger. In pertinent part, 38 U.S.C. § 1151 provides for compensation for qualifying additional disability in the same manner as if such additional disability were service connected. A qualifying additional disability is one in which the disability was not the result of the veteran's willful misconduct; and, the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran; and, the proximate cause of the 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 the hospital care, medical or surgical treatment, or examination; or was the result of an event not reasonably foreseeable. 38 U.S.C. § 1151. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's informed consent. Here, there is one opinion of record, dated January 2015. The examiner opined that although the Veteran should have received physical therapy after his first surgery, the lack of physical therapy did not cause the re-rupture of the right index finger tendon. Unfortunately, the examiner used the incorrect standard for determining cause of a disability for 38 C.F.R. § 1151 claims. On remand, an addendum medical opinion must be obtained with the proper legal standard that specifically addresses the Veteran's contentions. Service Connection for Bilateral Lower Extremity Neuropathy The Veteran is seeking service connection for bilateral lower extremity neuropathy, which he asserts is attributable to his in-service exposure to herbicides. For purposes of establishing service connection for a disability resulting from exposure to herbicide agents, a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era, beginning January 9, 1962 and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 U.S.C. § 1116(f); 38 C.F.R. § § 3.307(a)(6)(iii), 3.309(e). VA laws and regulations provide that, if a veteran was exposed to Agent Orange during service, and early onset peripheral neuropathy is manifest to a compensable degree within one year from last exposure, service connection is presumptively warranted. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). Here, the Veteran's military personnel records establish that he served in Vietnam from October 1970 to October 1971. In his lay statements, the Veteran asserts that he first manifested peripheral neuropathy in the early 1990s, almost two decades after his discharge from service. The fact that a veteran cannot establish entitlement to service connection on a presumptive basis does not preclude him from establishing entitlement on a direct incurrence or other basis. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.304(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). On the issue of nexus, the Veteran was afforded a VA examination in June 2015. At that time, the examiner provided a negative nexus, reasoning that there was no documentation of an in-service diagnosis of peripheral neuropathy and the Veteran did not develop peripheral neuropathy within the first five years after his discharge from service. While the examiner seemed to address presumptive service connection, the examiner did not provide an opinion regarding direct service connection. Thus, remand is required to obtain an addendum opinion discussing direct service connection. The matters are REMANDED for the following action: 1. Forward the Veteran's claims file to an appropriate clinician for a medical opinion related to the Veteran's 38 C.F.R. § 1151 claim. A complete copy of the claims file, to include a copy of this remand, must be made available to the examiner. After thorough review of the medical and lay evidence of record, the examiner should respond to the following: (a.) Was the Veteran's right index finger disability a result of, or worsened by, carelessness, negligence, lack of proper skill, error in judgment, or similar instance or fault on the part of the VA? Please specifically discuss the Veteran's contentions regarding not receiving physical therapy after his first surgery in September 2013. (b.) In responding, the examiner must specifically describe how any actions deviated from standard medical practice or procedures. The examiner should provide a thorough rationale to support this conclusion. (c.) Was the Veteran's right index finger disability, to include limited range of motion, notwithstanding any informed consent documents of record, based upon the specific facts and circumstances of the Veteran's case, a reasonably foreseeable outcome of any VA treatment? (d.) In rendering this opinion, the examiner should address whether a "reasonable health care provider" would have considered the Veteran's additional disability to be an ordinary risk of the treatment provided and would have disclosed such risk in connection with the treatment, regardless of what risks the treating physician actually foresaw and disclosed in the informed consent forms. The examiner should provide a complete rationale for all opinions provided. The need for additional in-person examination is left to the discretion of the examiner. If an opinion cannot be provided without resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case, and identify what additional evidence (if any) would allow for a more definitive opinion. 2. Forward the Veteran's claims file to an appropriate clinician to determine the nature and etiology of his peripheral neuropathy. The claims file must be made available to the examiner for review and the examiner should indicate that such review has been accomplished. Upon review of the record, the examiner must opine whether peripheral neuropathy is at least as likely as not directly related to the Veteran's in-service herbicide agent exposure. The examiner should provide a complete rationale for all opinions provided. The need for additional in-person examination is left to the discretion of the examiner. If an opinion cannot be provided without resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case, and identify what additional evidence (if any) would allow for a more definitive opinion. 3. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, a supplemental statement of the case. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Orie, 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.