Citation Nr: 20040141 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 18-25 190 DATE: June 11, 2020 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a tumor removal surgery is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1983 to June 1992 and from July 2000 to July 2004, with additional periods of active duty for training (ACDUTRA). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. For the sake of judicial economy and to more accurately reflect the scope of the Veteran’s claims, the claims for compensation under 38 U.S.C. § 1151 for pancreatitis and a scar, adenocarcinoma of the rectum including peritonitis laparotomy and volvulus/lysis of adhesion have been consolidated into one issue and recharacterized as shown on the title page. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a tumor removal surgery. The Veteran seeks compensation under 38 U.S.C. § 1151 for residuals of a tumor removal surgery. In essence, the Veteran contends that he suffered complications following his initial September 2016 resection surgery because VA was negligent in 1) failing to properly evaluate/diagnose an infection during his initial September 2016 post-surgical hospital stay, and 2) performing the initial September 2016 resection surgery. See July 2017 Statement in Support of Claim; March 2020 hearing transcript. The evidence of record shows that following the Veteran’s September 2016 resection surgery, he developed an abdominal abscess, post-surgical wound infection, sepsis, pancreatitis, peritonitis, and small bowel volvulus/ileal partial obstruction. See September and October 2016 VA treatment records; December 2016 private treatment records; April 2017 VA examination report. In April 2017, a VA examiner opined that the conditions were less likely than not caused by or became worse as a result of the September 2016 surgery. However, the Board finds that opinion is inadequate for a couple of reasons. First, the rationale is conclusory as the examiner simply states that the complications were not due to carelessness, negligence, lack of skill, or similar incidence of fault on part of VA. The examiner does not explain in any way why this is so and instead notes factors that “could have” adversely affected the Veteran’s treatment. Second, the rationale has an internal inconsistency. While the examiner provided a negative opinion, he states in the rationale that the “additional disability resulted from an event that could not have been foreseen by a reasonable healthcare provider, failure on the part of VA to timely diagnose and treat the claimed disability or disease and/or allowed it to continue to progress[,]” which indicates fault on part of VA. Accordingly, the Board finds that the April 2017 opinion is inadequate and new opinion should be obtained on remand. Moreover, there may be outstanding VA records. A September 2016 VA treatment record notes that informed consent was obtained for the September 2016 resection surgery and that the full consent document can be accessed through Vista Imaging. However, the signed consent form is not contained in the VA treatment records. Additionally, an October 2016 VA treatment record shows a Brief Operative Note for the October 17, 2016, surgery to drain the Veteran’s abscess, but the full operative report is not contained in the VA treatment records. Despite multiple requests for these documents, they have not yet been obtained nor is there a negative response indicating that they are unavailable. See June 2019 VA 10-7131 Exchange of Beneficiary Information and Request for Administrative and Adjudicative Action. Accordingly, on remand, the RO should again attempt to obtain these records. There also may be outstanding, relevant private treatment records. The evidence of record indicates that the Veteran first presented to University Medical Center (UMC) in September 2016 following his resection surgery for complaints of abdominal pain at which time he was transferred to a VA medical center. See September 2016 VA treatment record; December 2016 private treatment record. While treatment records from UMC are of record, the earliest records are from December 2016. Thus, there appears to be outstanding, relevant UMC records from September 2016. In addition, at the March 2020 hearing, the Veteran testified that he received post-surgical treatment from a home health company, BrightStar. While the record was held open for 60 days to allow the Veteran an opportunity to submit the record, no records were received. On remand, the Veteran should be given another opportunity to submit the records or proper authorization so that VA may obtain the records. The matters are REMANDED for the following action: 1. Obtain copies of all signed consent forms associated with the Veteran’s September 6, 2016, resection surgery at the Amarillo VA Medical Center as well as the full operative report of the October 17, 2016, surgery to drain the Veteran’s abdominal abscess. All efforts to obtain the records must be documented in the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for University Medical Center and BrightStar Home Health. Make two requests for the authorized records from the aforementioned facilities, unless it is clear after the first request that a second request would be futile. 3. Obtain a VA medical opinion from an appropriate clinician regarding the Veteran’s claim for residuals of a tumor removal surgery under § 1151. If the opinion cannot be provided without an examination, one should be scheduled. The examiner should review the claims file, including a copy of this REMAND. The examiner is asked to opine: a) Whether it is at least as likely as not that the post-surgical complications of abdominal abscess, post-surgical wound infection, sepsis, pancreatitis, peritonitis, and/or small bowel volvulus/ileal partial obstruction were proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the September 2016 resection surgical treatment in question. In so opining, the examiner also should address whether VA failed to timely diagnose and/or properly treat the Veteran’s infection(s), specifically during the September 2016 post-surgical hospital stay. When providing this opinion, please discuss if VA failed to exercise the degree of care that would be expected of a reasonable health care provider. b) Whether it is at least as likely as not that any of the post-surgical complications were an event not reasonably foreseeable. In determining whether an event is not reasonably foreseeable, the standard is what a “reasonable health care provider” would have considered to be an ordinary risk of treatment that would be disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32, which requires the primary health care provider to explain the reasonably foreseeable risks associated with the surgery or treatment being provided. A complete rationale must be provided for all opinions expressed. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, Associate 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.