Citation Nr: 24016830 Decision Date: 04/18/24 Archive Date: 04/18/24 DOCKET NO. 18-48 518 DATE: April 18, 2024 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 from August 1969 to August 1973, with verified service in the Republic of Vietnam during the Vietnam War era. These matters were last before the Board in February 2023, whereupon they were remanded to the Agency of Original Jurisdiction (AOJ) for further development of the record. Following the issuance of an October 2023 supplemental statement of the case continuing the denial of both claimed issues, the case was returned to the Board for its adjudication. Regrettably, for the reasons listed below, the Board does not find that its prior remand instructions were complied with, and so a remand is once again necessary. See Stegall v. West, 11?Vet. App.?268 (1998). 1. Entitlement to compensation under 38 C.F.R. § 1151 is remanded. The Veteran contends that compensation is warranted under 38 U.S.C. § 1151 for impairment he now experiences in his right index finger, which he asserts is attributable to the treatment, or lack thereof, that he received following right index finger surgery in September 2013. The Board remanded this matter in February 2023 in order to secure an opinion as to whether the Veteran experienced additional disability following the September 2013 surgery and, if so, whether that additional disability was the result of negligence on the part of VA staff or was the result of an outcome that was not reasonably foreseeable. Specifically, the Board instructed the chosen examiner to 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 he was provided. In an October 2023 medical opinion report, a VA examiner tacitly, but not expressly, acknowledged that the Veteran did indeed experience additional disability following the September 2013 surgery, making reference to a tendon rupture that occurred following the slippage of his right index finger from its splint. The examiner then found that this injury was not the result of or worsened by carelessness, negligence, lack of proper skill, error in judgment, or any fault on the part of the VA personnel who provided his care following the surgery. In support thereof, the examiner discussed the fact that the Veteran was scheduled for physical therapy in the days following the surgery, but that the Veteran himself neglected to show for that initial therapy session. Additionally, the examiner highlighted that discharge instructions provided the Veteran with contact information to allow the Veteran to request assistance or ask questions of VA medical personnel if needed. In summation, the examiner concluded that any additional disability experienced by the Veteran following the September 2013 surgery was the result of the Veteran's own poor care of his right index finger split and his failure to appear for the scheduled physical therapy session. In a separate October 2023 medical opinion report, the same VA examiner also concluded that a reasonable health care provider would less likely than not 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 physicians actually foresaw and disclosed in the informed consent forms. The examiner reiterated that the Veteran's disability was not due to treatment but was instead caused by his non-compliance with care procedures following the surgery. In summation, the examiner found that the Veteran's disability was due to patient factors beyond the control of VA personnel. The Board cannot rely on this opinion, as the examiner did not provide a rationale for his conclusions, and furthermore does not appear to understand the underlying query in analyzing a claim of compensation under 38 U.S.C. § 1151. Although the examiner did tacitly refer to an "injury", it is not clear from the opinion report what impairment, if any, constitutes an additional disability, as opposed to regular functioning of the right index finger that would be expected following the surgery the Veteran underwent. As for the informed consent prong of the analysis, the examiner set forth an internally contradictory opinion, stating both that the slippage of the sling and the resulting tendon rupture was not an ordinary risk of treatment, but also finding that a reasonable health care provider would have disclosed such a risk following treatment. Furthermore, while the examiner concludes that the procedures and care undertaken by VA medical personal following the surgery did not deviate from standard medical practice, he provides no explanation as to why this is so. Accordingly, remand is necessary to secure an addendum opinion responsive to the Board's prior remand instructions, which are copied in large part below. See Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to service connection for bilateral lower extremity neuropathy is remanded. The Veteran seeks entitlement to service connection for bilateral lower extremity neuropathy as attributable to his presumed exposure to toxic herbicide agents while in service. The Board remanded this claim in order to secure an opinion as to the likely etiology of the condition. Specifically, the Board's instructed the chosen examiner that the lack of presumptive entitlement to service connection for peripheral neuropathy is not a bar to a finding that there is nevertheless a nexus between such exposure and the development of the condition. Upon receipt of the case, the AOJ scheduled the Veteran for a VA examination in September 2023. After acknowledging the Veteran's reported history of having experienced neuropathy symptoms beginning some 20 years following his discharge from service, the examiner found that it was less likely than not that any neuropathy condition is attributable to service. As a rationale, the examiner found that there is no significant medical evidence that suggests a relationship between the development of peripheral neuropathy several years after exposure to toxic herbicide agents. To support this conclusion, the examiner referred to VA medical literature establishing that presumptive service connection is warranted for early-onset peripheral neuropathy that develops within one year of discharge from service. The examiner then determined that the Veteran's other risk factors, including a history of alcohol abuse as well as his exposure to aromatic chemicals through his previous work at a wood factory, are a more likely cause of his later development of neurological symptomatology. The Board cannot rely on this opinion, as the examiner appears to rely on the lack of presumptive service connection for peripheral neuropathy despite the Board's explicit instructions noting that this should not be a bar to a finding that the purported herbicide exposure contributed to his development of peripheral neuropathy. As such, remand is necessary in order to secure yet another addendum opinion addressing the Veteran's theory of entitlement with a rationale that does not rely on this erroneous basis. Stegall, supra. The matters are REMANDED for the following action: 1. Provide the claims file to a qualified VA medical professional in order to elicit an opinion regarding the Veteran's entitlement to compensation under 38 U.S.C. § 1151. The entire claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the opinion report must include discussion of the Veteran's documented medical history and assertions relating to the September 2013 surgery and his care thereafter. The examiner should render an opinion, consistent with the record and sound medical judgment, as to whether it is at least as likely as not (an approximate balance of positive and negative evidence) that the Veteran incurred additional disability as a result of the September 2013 right index finger surgery. Specifically, any impairment of right index finger functioning must be accounted for by the examiner. In opining as to whether the Veteran incurred any additional disability as a result of either surgery, the examiner is informed that to determine whether additional disability exists, the Veteran's physical condition immediately prior to the beginning of the hospital care, medical or surgical treatment, or other relevant incident in which the claimed disease or injury was sustained upon which the claim is based, is compared to the Veteran's condition after such treatment, examination, or program had stopped. For each identified additional disability found to be a result of the September 2013 surgery and the care provided to the Veteran following that surgery, the examiner should also opine as to whether the proximate cause of such disability was at least as likely as not a result of (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or (b) an event NOT reasonably foreseeable. In opining as to whether any identified additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or other instance of fault, it must be shown that VA failed to exercise the degree of care expected by a reasonable treatment provider, or furnished the treatment at issue without informed consent. In opining as to whether an event was reasonably foreseeable, the examiner must consider whether the event in question was the type of risk that a reasonable health care provider would have disclosed as part of the procedures for informed consent. The examiner is requested to provide a thorough rationale for any opinions expressed. A thorough rationale is not simply a restatement of the evidence but includes the application of medical analysis and a discussion of the significance of the relevant evidence, as well as relevant medical literature and/or studies. 2. Provide the claims file to a qualified examiner in order to secure an addendum opinion addressing the likely etiology of the claimed bilateral lower extremity peripheral neuropathy. The claims file, to include a copy of this remand, must be made available to the chosen examiner, who must indicate that they reviewed the file prior to preparing any opinion. The examiner is asked to opine as to whether it is at least as likely as not (an approximate balance of positive and negative evidence) that a lower extremity neurological disorder was incurred in or is otherwise attributable to active military service. In setting forth this opinion, the examiner must specifically address the Veteran's contention that the condition is attributable to his purported exposure to toxic herbicide agents while in service. The examiner is reminded that the lack of presumptive entitlement to service connection is not a bar to a finding that there is nevertheless a nexus between such exposure and the development of a diagnosable neurological disorder. A complete rationale is required for any and all opinions. The lay contentions of the Veteran must be considered. 2. Prior to returning this remand to the Board, it is asked that the AOJ review the examiner's opinion reports to ensure compliance with the Board's directives outlined above. If those directives are not complied with in full, the AOJ should take all reasonable measures, to include securing yet another addendum opinion or opinions, in order to confirm that each component of the Remand instructions are addressed in a comprehensive opinion report. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.