Citation Nr: 24003003 Decision Date: 01/19/24 Archive Date: 01/19/24 DOCKET NO. 14-20 255A DATE: January 19, 2024 REMANDED Entitlement to VA compensation benefits under 38 U.S.C. § 1151 for residuals of a hernia operation is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1975 to December 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural history, the Veteran filed a claim for VA compensation benefits under 38 U.S.C. § 1151 in August 2011, contending that he began experience numbness in his left groin area following a 2008 hernia operation. The local regional office (RO) denied the claim in a January 2012 rating decision, and the Veteran ultimately appealed to the Board in June 2014. See VA Form 9, Substantive Appeal. In an April 2018 decision, the Board denied the claim. He appealed that decision to the higher U. S. Court of Appeals for Veterans Claims (Court/CAVC). In October 2018, the parties filed a Joint Motion for Remand (JMR), granted by the Court in an Order that same month, vacating the Board's decision to the extent it had denied this claim, and remanding this claim back to the Board for still more development and readjudication in compliance with directives specified in the JMR. In May 2019, the Board, in turn, remanded this claim back to the RO (AOJ) to comply with the JMR and more specifically, to obtain a medical opinion with an adequate rationale concerning whether the Veteran has an "additional disability" as a result of his September 2008 hernia surgery. After still more subsequent remands for even more development of this claim, the Board issued another decision in July 2022 again determining the residuals of the Veteran's September 2008 hernia repair surgery, specifically nerve damage, were not the result of carelessness, negligence, lack of proper skill, error in judgment or similar fault on the part of VA, so again denying this claim. See August 2020 Medical Opinion; October 2020 VA Examination; November 2020 Board Remand; August 2021 VA Examination; October 2021 Board Remand; November 2021 Medical Opinion; March 2022 Medical Opinion; March 2022 Addendum Medical Opinion. The Veteran again appealed to the Court. In a June 2023 Memorandum Decision, the Court, a second time, vacated (set aside) the Board's decision denying this claim and remanded it back to the Board. The Court determined that the conflicting medical opinions upon which the Board relied in the July 2022 decision ultimately calls into question the competency of both examiners. Specifically, the Court found that one VA examiner questioning the medical knowledge of a second VA examiner, notably the correct anatomical location of the sural nerve, indicates that at least one of the medical examiners based her medical opinion on an incorrect understanding of the human body. For the aforementioned reasons, the Board finds that remand is warranted to obtain yet another VA medical opinion in order to reconcile the conflicting medical evidence of record and address whether the Veteran has additional disability as a result of his September 2008 hernia surgery. The matters are REMANDED for the following action: 1. Return the claims file to a VA examiner different than those who provided the August 2021, November 2021, and March 2022 medical opinions to obtain supplemental medical comment as to whether the Veteran has additional disability as a result of his September 2008 hernia surgery. A copy of this remand and all relevant medical records should be made available to the examiner. The examiner shall indicate in the addendum report that the claims file was reviewed. The examiner should review the pertinent evidence, including the Veteran's lay assertions, and undertake any indicated studies. The need for an additional in person examination is left to the discretion of the medical professional offering the addendum opinion. After reviewing the claims file, including this remand, the examiner is asked to answer the following questions: (a.) Is it at least as likely as not that the Veteran's left sural sensory polyneuropathy is the result of the September 2008 hernia repair surgery? In making a determination, the examiner is specifically directed to address the conflicting August 2021, November 2021, and March 2022 opinions concerning the cause of the left sural sensory polyneuropathy. In addition, the examiner should note the correct anatomical location of the sural nerve. (b.) If, and only if, the examiner determines that the Veteran's left sural sensory neuropathy is the result of the September 2008 hernia repair surgery, the examiner is asked to respond to the following: i. Is it at least as likely as not (50 percent or greater probability) that this additional disability is 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 treatment and/or that VA failed to exercise the degree of care that would be expected of a reasonable health care provider? ii. Is it at least as likely as not (50 percent probability or greater) that this additional disability is the result of an event not reasonably foreseeable by a reasonable health care provider? In making a determination, the opining clinician should consider: (i) January 2019 Dr. L.R.C. Treatment Note; (ii) February 2019 Treatment Note; (iii) August 2020 Medical Opinion; (iv) October 2020 VA Examination; (v) November 2020 Board Remand; (vi) August 2021 VA Examination; (vii) October 2021 Board Remand; (viii) November 2021 Medical Opinion; (ix) March 2022 Medical Opinion; (x) March 2022 Addendum Medical Opinion; (xi) July 2022 Board Decision; and, (xii) June 2023 CAVC Memorandum Decision. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Colleen M. Glaser-Allen Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mukherjee, C. 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.