Citation Nr: 25002145 Decision Date: 02/12/25 Archive Date: 02/12/25 DOCKET NO. 19-25 630 DATE: February 12, 2025 REMANDED Entitlement to compensation under section 1151 for amputation of the right leg above the knee is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1967 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in April 2021. This matter was remanded in September 2023 for further development. The case has returned to the Board for further appellate review. Entitlement to compensation under section 1151 for amputation of the right leg above the knee is remanded. As noted in the September 2023 Board remand, remand was necessary for the agency of original jurisdiction (AOJ) to furnish a statement of the case (SOC) regarding compensation under section 1151. Thus, the AOJ was directed to issue an SOC with respect to the March 2018 notice of disagreement regarding the issue of compensation under section 1151 for amputation of the right leg above the knee, notifying the Veteran that to continue the appeal of this issue, a timely legacy system substantive appeal form or modernized appeal system notice of disagreement form must be filed in response to the SOC. On remand, rather than issue an SOC, the AOJ issued a supplemental statement of the case (SSOC) in December 2024 which informed the Veteran that a response to the SSOC was optional and was not required to continue the Veteran's appeal. The Board finds that there has not been substantial compliance with the Board's remand directives, and thus, remand is warranted. The Board also notes that VA opinions were obtained in December 2023 and December 2024 which appear to be inadequate because they are based on an insufficient rationale. Accordingly, on remand, a new VA opinion should be obtained. This matter is REMANDED for the following action: 1. Obtain an opinion from a qualified clinician who has not previously provided an opinion regarding the Veteran's claim of entitlement to compensation under 38 U.S.C. § 1151 for right leg amputation above the knee. The Board notes it is imperative that the selected clinician answer the following questions, as written, in successive order rather than provide a free-text narrative responsive, as the questions are based on the three-element test for failure-to-treat 1151 claims as outlined by the United States Court of Appeals for the Federal Circuit in Roberson v. Shinseki, 607 F.3d 80 (Fed. Cir. 2010). a. Is it at least as likely as not (at least an approximate balance of positive and negative evidence) that VA providers failed to timely diagnose and/or treat the Veteran after his March 2017 right knee surgery, to include the resulting infection? b. If so, is it at least as likely as not (at least an approximate balance of positive and negative evidence) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment? c. If so, is it at least as likely as not (at least an approximate balance of positive and negative evidence) the Veteran suffered a disability that probably would have been avoided if the proper diagnosis and treatment had been rendered earlier? Please describe the full extent of any disability that could have been avoided if the proper diagnosis and treatment had been rendered earlier. The clinician must be advised the questions above are successive in nature and each element is a prerequisite for the subsequent element. Thus, if an answer to any question is "no," it is not necessary to address the following question. There must be a full rationale provided to support the conclusion regarding each question answered. In this regard, a recitation of the evidence is not sufficient to provide the Board with the information needed to make an informed decision in this case. Rather, it is the rationale explaining, in detail, why the evidence supports the findings made by the clinician asked to provide an opinion. 2. Then, issue a statement of the case with respect to the March 2018 notice of disagreement regarding the issue of compensation under section 1151 for amputation of the right leg above the knee. Notify the Veteran that to continue the appeal of this issue, a timely legacy system substantive appeal form or modernized appeal system notice of disagreement form must be filed in response to the statement of the case. 38 C.F.R. §§19.22, 19.30, 20.202. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Elias, M 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.