Citation Nr: 21063370 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-16 757A DATE: October 14, 2021 REMANDED Compensation under 38 U.S.C. § 1151 for additional disability associated with multiple abdominal surgeries performed by VA in March 2014 is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1966 to April 1968. The Veteran died in September 2020. The appellant is the Veteran's surviving spouse, who has been substituted in this claim. 38 U.S.C. § 5121A. This matter is on appeal from a March 2015 rating decision issued by the Regional Office (RO) in Nashville, Tennessee. The Veteran testified in Nashville, Tennessee, at a Board videoconference hearing in May 2019 before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. This matter was previously before the Board in November 2019. In November 2019, the Board remanded the issue on appeal for additional development, to obtain and addendum medical opinion to specifically address the Veteran's contention that the second surgery (i.e., the trauma abdominal exploratory surgery) was not necessary to treat his gallstones. In March 2014, the record indicates that the Veteran initially underwent an endoscopic retrograde cholangiopancreatography, ERCP, with possible interventions and subsequently underwent a second surgery, the trauma abdominal exploratory surgery to treat gallstones. In November 2019, the Board requested an addendum opinion to answer the question of whether the recommendation and performance of the second surgery, the trauma abdominal exploratory surgery, in March 2014 was the result of VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical treatment in March 2014? In a June 2020 addendum opinion, the VA examiner opined that it is less likely than not (less than 50% probability) that the additional disability resulted from the attending VA personnel's failure to follow the appropriate standard of care; however, the rationale provided was that the Veteran underwent surgery in March 2014 for the removal of gallstones that resulted in known but recognized risks, including duodenal leak, pneumonia x 2 and sepsis leading to kidney failure, and that the Veteran subsequently required intubation, which resulted in scarring of the trachea. The examiner wrote that these complications did not arise from VA personnel's failure to follow the appropriate standard of care, but provided no further explanation to support this conclusion. While the opinion indicates that the complications of the March 2014 surgery to remove gallstone resulted in known risks, indicating that the complications were foreseeable, the examiner does not explain in any detail why the recommendation and performance of the 2nd surgery (i.e., the trauma abdominal exploratory surgery) was not the result of VA carelessness or failure to follow the appropriate standard of care, particularly in light of the Veteran's contention that the second surgery was unnecessary. An addendum opinion is necessary to specifically address the Veteran's contention that the recommendation and performance of the second surgery to treat gallstones was unnecessary and, therefore, was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical treatment. The matter is REMANDED for the following action: Return the VA medical opinion report to the VA examiner who provided the medical opinion in June 2020. If the original VA examiner is unavailable, a new examiner may be assigned to address the requested opinion. The relevant documents in the record should be reviewed by the examiner and a detailed history of relevant symptoms should be obtained from the record. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The examiner should offer opinions: a) Is it at least as likely as not (50 percent or greater probability) that the recommendation and performance of the second surgery, the trauma abdominal exploratory surgery, in March 2014 was the result of VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical treatment in March 2014? (Continued on the next page) In rendering the opinion, the examiner should address the Veteran's assertion that the second surgery, the trauma abdominal exploratory surgery, in March 2014 was not necessary to treat gallstones following the initial surgery, which raises the question of VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in recommending and performing the aforementioned treatment. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna 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.