Citation Nr: 21068236 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 16-40 262 DATE: November 9, 2021 REMANDED Entitlement to compensation under the provisions of 38 U.S.C. § 1151 compensation for the additional disability of gastroparesis due to treatment or care received by Department of Veterans Affairs (VA) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1996 and May 1998. This matter comes to the Board of Veterans' Appeals (Board) on appeal of an April 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Veterans Law Judge at a July 2019 hearing and a transcript is of record. The Judge who conducted this hearing is no longer employed by the Board. In August 2021, the Veteran was informed that the Judge was no longer employed and that they had a right to an additional hearing. The Veteran did not respond to this correspondence. The correspondence indicates that, if the Veteran does not respond, it is assumed he does not want another hearing. The Board remanded this matter for additional development in May 2020. Entitlement to 38 U.S.C. § 1151 compensation for the additional disability of gastroparesis due to treatment or care received by Department of Veterans Affairs (VA) is remanded. On June 24, 2011, the Veteran underwent laparoscopic Nissen fundoplication performed by VA. The June 2011 operative report indicates that the procedure was performed to treat gastroesophageal reflux disease (GERD) and hiatal hernia. The operative report noted that that the Veteran "tolerated the procedure well and the procedure occurred without complication." However, by March 2012, the Veteran had lost a significant amount of weight and was diagnosed by a VA physician with gastroparesis "likely secondary to Nissen Fundoplications with possible radial nerve injury given the onset of symptoms after the surgery" and recommended to continue tube feeding. The record contains VA medical opinions from October 2012 and March 2013 and a private opinion from January 2013. The Board finds all three inadequate. The October 2012 VA examiner did not have the opportunity to review relevant evidence added to the record since October 2012, including the January 2013 private opinion that the VA's treatment of the Veteran's asthma may have possibly aggravated the Veteran's gastrointestinal issues that necessitated the June 2011 surgery. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Dalton v. Nicholson, 21 Vet. App. 23 (2007). The January 2013 private medical opinion did not express the right degree of certainty. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Bloom v. West, 12 Vet. App. 185, 187 (1999). The private physician agreed with the "possibility" that the Veteran's asthma medications "maybe" aggravated the Veteran's hiatal hernia, which caused the GERD, both of which necessitated the Nissen fundoplication procedure. The Board finds that the issue of the qualifications of the March 2013 VA examiner to opine on a "complex" gastrointestinal (GI) surgery has been raised by the record. The VA examiner qualified the March 2013 VA opinion by noting that, "I am not a GI specialist." The Board has a duty to consider all issues reasonably raised by the evidence of record, including as to the adequacy of a VA medical opinion. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Further, the record since March 2013 shows that the Veteran has continued to seek care for gastroparesis and other GI symptoms following the June 2011 surgery and no VA examiner has had an opportunity to consider this additional evidence. The Board cannot, in making its decisions, assert its own medical opinion about the relevance of this evidence as to whether any further GI symptoms were reasonably foreseeable. 38 C.F.R. § 3.361(d)(2); see Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); Schertz v. Shinseki, 26 Vet. App. 362, 36769 (2013). Finally, the March 2013 also opinion does not consider all the relevant lay statements. Nieves-Rodriguez, 22 Vet. App. at 295; Dalton, 21 Vet. App. at 23. The Veteran provided sworn testimony in May 2016 and July 2019 about what the VA surgeon discussed with the Veteran prior to the June 2011 surgery. An addendum VA medical opinion from an examiner with appropriate expertise and the addresses all relevant medical and lay evidence is warranted. The matter is REMANDED for the following action: Obtain an addendum opinion addressing the issue of entitlement to compensation under 38 U.S.C. § 1151. After review of the evidence of record, including the June 2011 surgical notes and consent forms and May 2016 and July 2019 hearing transcripts, an examiner with appropriate expertise should furnish an opinion with respect to the following questions: (a.) Is it at least likely as not that asthma medication aggravated the Veteran's hiatal hernia or GERD, or both, which necessitated the June 2011 surgery? (b.) Did the Veteran receive proper informed consent before the June 2011 surgery? Was the Veteran advised the Veteran of the known risks associated with the procedure? (c.) Was any resulting additional disability not reasonably foreseeable? Was the risk of the additional disability the type of risk that a reasonable health care provider would have disclosed in connection with informed consent procedures? The examiner should consider the Veteran's sworn testimony from May 2016 and July 2019. The examiner is advised that the Veteran is competent to report what the surgeon told the Veteran prior to the June 2011 surgery. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand order. A complete rationale for all opinions is required. The rationale must include a discussion of the facts and medical principles involved. If a requested opinion cannot be made without speculation, the examiner must explain why. Is it because no one could respond given current medical science and the known facts, additional facts are needed, or the examiner does not have the needed knowledge or training? G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James Hekel 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.