Citation Nr: 21062052 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-35 088 DATE: October 6, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for neurological disabilities related to colon surgery with hemorrhage is remanded. REASONS FOR REMAND The Veteran had active duty service from November 1966 to December 1967. The Veteran died in August 2018. The appellant is his surviving spouse, who has been substituted for purposes of processing the Veteran's claim to completion. In a September 2014 rating decision, VA denied entitlement to compensation under 38 U.S.C. § 1151 for neurological disabilities related to colon surgery with hemorrhage. In May 2015, VA confirmed and continued this denial. In July 2015, VA determined that new and material evidence had not been submitted to reopen a claim of entitlement to compensation under section 1151 for neurological disabilities related to colon surgery with hemorrhage. The Veteran disagreed with the decision and perfected this appeal. On review, new and material evidence was received within the one-year appeal period following the September 2014 denial. Thus, the Board considers the appeal to stem from the initial claim and will consider the issue on its merits. See 38 C.F.R. § 3.156(b). The appellant testified at a June 2021 video hearing with the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Entitlement to compensation under 38 U.S.C. § 1151 for neurological disabilities related to colon surgery with hemorrhage is remanded. Based on the evidence of record and the hearing testimony from the appellant, the Board finds that additional development is necessary in order to adjudicate this claim. In the June 2021 hearing, the appellant testified to the following evidence. A physician at the VA Hospital told her and the Veteran that he had cancer in his colon. The doctor showed them a video of a colon that was bloody and black and the Veteran was encouraged to have surgery as soon as possible or he may not live very much longer. Within a week, he had his colon removed. He was already under anesthesia before he signed the paperwork giving his consent for the surgery. After he had his colon removed, he was not feeling well. When he arrived at the hospital, he was rushed in and, after performing tests, they notified her that they had to do an emergency surgery because they had found a leakage in his cavity. All waste was going into the cavity of his body which was affecting all of his organs. The appellant contended that the surgery should have never been performed. She believed that the video that they had been shown of the unhealthy colon was not the Veteran's. The appellant testified that she believed the Veteran would have lived longer if his colon had not been removed. She believed the removal triggered other cancers within his body to progress and be aggressive. Three weeks prior to the colon removal surgery, he had a colonoscopy, which then led to the doctor showing them the video of the unhealthy colon. After the surgery, the lab cleaned the colon and noted that it was healthy and should not have ever been removed. The appellant believed that the removal of the colon caused his other disabilities. She noted that his right side did not work, including his right arm and hand. He was hardly able to grip with his right hand. If he stood, he had to drag his right leg to walk. She first noticed these things after the second surgery following his colon removal for the cavity leakage. He spent 14 days in the hospital after the second surgery, which is when the appellant noticed the right side of his body was not functioning the same. She noted that there were multiple symptoms that did not exist before the colon surgery. The Board finds that remand is required in order to obtain an opinion about the surgical removal of the Veteran's colon as it relates to the appellant's claim for entitlement to compensation under 38 U.S.C. § 1151. Accordingly, the matter is REMANDED for the following action: 1. Obtain the full consent documents for the August 2010 colon removal surgery from the appropriate sources, to include VistA Imaging Display, if appropriate. 2. After #1 is complete, obtain an addendum opinion from an appropriate clinician to determine the etiology of any residuals of the surgical removal of the colon. The examiner must review the claims file, including the hearing testimony. a. Please identify all residuals of the surgical removal of the colon, to include any pathology or laboratory findings resulting from an examination of the removed colon. b. For each identified residual of the colon removal, to include any subsequent surgeries and neurological disabilities, please state whether it is at least as likely as not proximately caused by: i. Carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA; or ii. An event not reasonably foreseeable by the healthcare provider, to include whether having to flush out the body cavity was a reasonably foreseeable result of the colon removal surgery. The event 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. Please address the appellant's contention that the colon was found to be healthy on biopsy and that the colon removal was an unnecessary procedure or the result of a misdiagnosis of colon cancer. If the examiner finds reason to disregard the lay reports, the examiner must clearly explain why that is the case. Please be aware that lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. Support each opinion with a clear rationale. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Minock 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.