Citation Nr: 21072946 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 14-28 282A DATE: December 7, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for post-abdominal aortic aneurysm repair complications, including respiratory failure, pneumonia, abdominal pain, ventral hernia, hypotension, neuropathy, and abdominal wall deficiency, due to a delay in scheduling the Veteran's surgery, is remanded. Entitlement to service connection for depression as secondary to post-abdominal aortic aneurysm repair complications is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force from April 1955 to February 1959. Unfortunately, the Veteran died during the pendency of this appeal in January 2015. The appellant is the Veteran's surviving wife, who has been properly substituted as the claimant. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal of an August 2013 Department of Veterans Affairs (VA) rating decision. 1. Entitlement to compensation under 38 U.S.C. § 1151 for post-abdominal aortic aneurysm repair complications, including respiratory failure, pneumonia, abdominal pain, ventral hernia, hypotension, neuropathy, paresthesias, and abdominal wall deficiency, due to a delay in scheduling the Veteran's surgery, is remanded. The Veteran contended that he was entitled to compensation pursuant to 38 U.S.C. § 1151 for post-abdominal aortic aneurysm repair complications, including respiratory failure, pneumonia, abdominal pain, ventral hernia, hypotension, neuropathy, paresthesias, and abdominal wall deficiency, due to the VA's delay in scheduling his surgery. Under 38 U.S.C. § 1151, if VA hospitalization or medical or surgical treatment results in additional disability that is not the result of the Veteran's own willful misconduct or failure to follow instructions, compensation may be awarded in the same manner as if the additional disability were service connected. 38 C.F.R. § 3.361. In order to constitute a qualifying additional disability, the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment, or examination; or (2) an event not reasonably foreseeable. 38 C.F.R. § 3.361(a). The Veteran contended that he suffered post-abdominal aortic aneurysm repair complications, including respiratory failure, pneumonia, abdominal pain, ventral hernia, neuropathy, paresthesias, and abdominal wall deficiency, that resulted from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA healthcare providers furnishing care or treatment. In this regard, the Veteran specifically argued that the VA physician who provided his vascular consultation on February 13, 2009 was responsible for his post-abdominal aortic aneurysm repair complications because he scheduled the Veteran's repair surgery for February 24, 2009 (with hospital admittance scheduled for the day before) rather than sooner, despite reviewing his computed tomography (CT) scan of a large 7.8 centimeter (CM) asymptomatic abdominal aortic aneurysm. The Veteran had asserted that had his surgery been scheduled earlier, he would not have had to go to the emergency room on February 21, 2009 where he was intubated and resuscitated and underwent an emergency abdominal aortic aneurysm repair, and then subsequently experienced respiratory failure and developed pneumonia, and continued to develop post-abdominal aortic aneurysm repair complications, including abdominal pain, ventral hernia, hypotension, neuropathy, and abdominal wall deficiency. September 2009 VA medical records indicate that the Veteran was called by a VA nurse, attorney, and infectious disease specialist. They told him he was scheduled for an elective abdominal aortic aneurism repair on February 23, 2009, and they noted that the Veteran required emergency surgery for an abdominal aortic aneurism repair prior to that date. They apologized for not scheduling the surgery sooner, but they stated that they believed the scheduled date was within the standard of care. May 2010 private medical records by a private physician stated that the Veteran had a neuropathy due to postoperative hypotension. The July 2013 VA examiner, an internal medicine doctor, noted the Veteran's abdominal pain, ventral hernia, and abdominal wall deficiency as residuals from the Veteran's surgery. He opined that the VA doctor's decision to schedule the Veteran's surgery less than two weeks away under the particular circumstances where he saw the Veteran's asymptomatic large 7.8 cm abdominal aortic aneurysm may not be unreasonable, however he did not opine whether the Veteran's post-abdominal aneurysm repair complications were due to the VA vascular surgeon's delay in scheduling the Veteran's surgery. Additionally, the VA examiner stated that the standard of practice can only be articulated by a qualified vascular surgeon. However, an examination by a qualified vascular surgeon has yet to be undertaken. Thus, a remand is warranted to obtain the appropriate opinion from a qualified vascular surgeon. 2. Entitlement to service connection for depression as secondary to post-abdominal aortic aneurysm repair complications is remanded. The Veteran sought service connection for depression as secondary to his post-abdominal aortic aneurysm repair complications. Accordingly, the Board finds that the Veteran's service connection claim for depression is inextricably intertwined with the claim for compensation under 38 U.S.C. § 1151 for post-abdominal aortic aneurysm repair complications. For this reason, the claim for compensation under 38 U.S.C. § 1151 for post-abdominal aortic aneurysm repair complications must be resolved prior to resolution of the secondary service connection claim for depression. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 3. Entitlement to a TDIU is remanded. The claim for entitlement to a TDIU may be affected by the outcome of the claim for compensation under 38 U.S.C. § 1151 for a post-abdominal aortic aneurysm repair complications and the claim for service connection for depression as secondary to post-abdominal aortic aneurysm repair complications. It would be premature to adjudicate the TDIU claim until the compensation under 38 U.S.C. § 1151 and service connection claims have been considered. Therefore, the issues are inextricably intertwined, and the TDIU claim must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Obtain all outstanding VA medical records pertaining to the Veteran's abdominal aortic aneurism repair and post-repair complications and pertaining to the Veteran's mental health. 2. Obtain a retrospective addendum VA medical opinion from a vascular surgeon with regard to the Veteran's 38 U.S.C. § 1151 claim for post-abdominal aortic aneurysm repair complications, including respiratory failure, pneumonia, abdominal pain, ventral hernia, hypotension, neuropathy, and abdominal wall deficiency, due to due to a delay in scheduling the Veteran's surgery. The Veteran's entire claims file, to include a copy of this REMAND, must be provided to the examiner and reviewed in full. That review must be noted in the report. Thereafter, the examiner is asked to provide a fully-articulated medical opinion addressing the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's post-abdominal aortic aneurysm repair complications, including respiratory failure, pneumonia, abdominal pain, ventral hernia, hypotension, neuropathy, and abdominal wall deficiency, were caused or aggravated by VA's failure to schedule the Veteran's surgery less than 10 days from February 13, 2009? (b.) If a relationship between the Veteran' post-abdominal aortic aneurysm repair complications, including respiratory failure, pneumonia, abdominal pain, ventral hernia, hypotension, neuropathy, and abdominal wall deficiency, and the VA's scheduling of the Veteran's surgery 10 days after the Veteran's February 13, 2009 evaluation is shown, the examiner must opine whether it is at least as likely as not (50 percent probability or greater) that the post-abdominal aortic aneurysm repair complications, including abdominal pain, ventral hernia, and abdominal wall deficiency, was the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in failing to timely schedule the Veteran's surgery. In providing the requested opinion, the examiner must discuss whether the Veteran's VA healthcare providers failed to exercise the degree of care that would be expected of a reasonable healthcare provider, either through action or inaction. (c.) is it at least as likely as not (a 50 percent probability or greater) that the Veteran's post-abdominal aortic aneurysm repair complications, respiratory failure, pneumonia, abdominal pain, ventral hernia, hypotension, neuropathy, and abdominal wall deficiency, were reasonably foreseeable outcomes of medical treatment (lack thereof) based upon the specific facts and circumstances of the Veteran's case? A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ahuva D. Sunshine 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.