Citation Nr: 18140366 Decision Date: 10/03/18 Archive Date: 10/02/18 DOCKET NO. 15-01 646 DATE: October 3, 2018 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for post-operative transhiatal esophagectomy with cervical anastomosis is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from June 1965 to December 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran submitted a notice of disagreement (NOD) in March 2012. A statement of the case (SOC) was issued in December 2014. The Veteran perfected a timely substantive appeal via VA Form 9 in January 2015. A Board videoconference hearing was held before the undersigned in August 2016. 1. Entitlement to compensation under 38 U.S.C. § 1151 for post-operative transhiatal esophagectomy with cervical anastomosis is remanded. The Veteran contends that entitlement to benefits is warranted under 38 U.S.C. § 1151 for post-operative transhiatal esophagectomy. In February 2006, the Veteran underwent surgery after indications of esophageal cancer. The surgery uncovered no malignancy and the Veteran was eventually discharged after an extended hospital stay. In August 2014, he underwent VA examination in conjunction with the current claim. The examiner stated that the post-operative course was uneventful and the Veteran was discharged from the hospital after a two week stay. His review of the medical records revealed no carelessness, negligence, lack of proper skill, error in judgement or similar instance of fault on the part of the Columbia VAMC. However, the Veteran points to post-operative notes in his medical file indicating that he developed ventilator-associated pneumonia. Medical records also document that he pulled out his nasogastric tube several days after the surgery. When the tube was not promptly replaced, one of the Veteran’s surgeons wrote that he felt that the care of the patient had been compromised. Additionally, in a July 2016 Claimant’s Brief, his representative alleged that, subsequent to the surgery, the Veteran experienced a 15 pound weight loss along with loss of strength, energy, and fatigue. Diagnoses of dysphagia, GERD, and Barrett’s esophagus were noted post-surgery. Accordingly, the Board finds a remand is necessary to obtain an addendum opinion as to whether the Veteran has an additional disability caused by VA medical care due to negligence or an unforeseeable act. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from a physician (medical or radiation oncologist, thoracic surgeon or head and neck surgeon, or gastroenterologist) on the Veteran’s claim regarding post-operative transhiatal esophagectomy with cervical anastomosis. (a.) The examiner is advised that the Veteran’s contentions are that he underwent surgery in February 2006 after indications of esophageal cancer. Following surgery, he experienced ventilator-related pneumonia. Additionally, several days after the surgery, he pulled out his nasogastric tube. When the tube was not promptly replaced, one of the Veteran’s surgeons wrote that he felt that the care of the patient had been compromised. Additionally, the Veteran has experienced weight loss; loss of strength, energy, and fatigue; and diagnoses of dysphagia, GERD, and Barrett’s esophagus post-surgery. (b.) In light of the foregoing, the examiner should provide an opinion on the following: i. Is it at least as likely as not (50 percent or greater probability) that the Veteran incurred an additional esophageal disability as a result of the February 2006 surgery? ii. Is it at least as likely as not (50 percent or greater probability) that any additional esophageal disability and post-surgery diagnoses of dysphagia, GERD, or Barrett’s esophagus were proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of the VA? The examiner must indicate whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider. iii. Is it at least as likely as not (50 percent or greater probability) that any additional esophageal disability and the post-surgery diagnoses of dysphagia, GERD, or Barrett’s esophagus were proximately caused by an event not reasonably foreseeable? An event not reasonably foreseeable need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. (c.) The examiner must review the claims file and explain any conclusion offered and provide a supporting rationale. If the needed opinion cannot be provided without resort to speculation, the examiner must explain why the opinion cannot be offered and state whether the inability is due to the absence of any additional evidence or to the limits of scientific or medical knowledge. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jamison, Elizabeth G.