Citation Nr: 25005657
Decision Date: 04/25/25	Archive Date: 04/25/25

DOCKET NO. 18-02 325
DATE: April 25, 2025

REMANDED

Entitlement to compensation under 38 U.S.C. § 1151 for residuals of right foot surgery with loss of the second and third toe is remanded.

REASONS FOR REMAND

The Veteran honorably served on active duty from January 1966 to April 1967.

This matter is before the Board of Veterans Appeals (Board) from an April 2015 rating decision.

The Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing in May 2022. A hearing transcript is of record.

In an April 2023 decision, the Board denied the Veteran's claim. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims ("CAVC" or "the Court"). In a July 2024 Memorandum Decision, CAVC issued an order which set aside the Board's April 2023 decision denying compensation and remanded it for further action. 

1. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of right foot surgery with loss of the second and third toe is remanded.

The matters are REMANDED for the following action:

1. BACKGROUND INFORMATION FOR THE REGIONAL OFFICE (RO) ADJUDICATOR: 

An adequate addendum medical opinion is needed that addresses whether developing peripheral artery disease (PAD) from the original right foot surgery was due to an event not reasonably foreseeable, and if so, whether the PAD resulted in the amputation of the second and third toes of the Veteran's right foot. 

THE REMAND DIRECTIVES FOLLOW.

2. Forward the claims file to a qualified examiner. Following a review of the claims file, the examiner should respond to the following:

(a.) Did the Veteran incur additional disability because of his April 2011 VA right foot surgery?  Specifically, was the Veteran's April 2011 VA right foot surgery the cause of his subsequent peripheral artery disease (PAD) of the right foot? Explain why or why not. If so, the additional disability should be clearly identified.

(b.) If yes to (a.), then is the Veteran's additional disability (PAD) the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA personnel? Explain why or why not.

(c.) If yes to (a.), then is the Veteran's additional disability a reasonably foreseeable outcome of the April 2011 right foot surgery? Explain why or why not.

(d.) Was the subsequent amputation of the toes of the right foot due to the development of the PAD? Explain why or why not.

The clinician is informed that a favorable finding does not require certainty. Rather, if the weight of the evidence is in approximate balance for and against, the examiner should decide favorably for the Veteran.

All conclusions reached should be supported by a rationale that is based on established medical principles with citation to peer-reviewed medical literature if possible.

3. Readjudicate.

 

 

Jennifer White

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Alexander

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.