Citation Nr: 21075955 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 16-58 515 DATE: December 22, 2021 REMANDED The issues of entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional disabilities resulting from 1989 VA surgeries, to include psoriasis, psoriatic arthritis, and residuals from cystectomy, tracheotomy, and a left lower leg fasciotomy, are remanded for additional development. REASONS FOR REMAND The Veteran served on active duty from November 1967 to May 1968. This matter is on appeal following his appeal of an August 2015 rating decision, which reopened and denied the Section 1151 claims on appeal. In October 2019, the Veteran testified before the undersigned Veterans Law Judge. The Board then remanded the appeal in March 2020. The Board regrets the additional delay but finds that an independent medical opinion is needed prior to adjudication of the Veteran's claims. The Veteran is seeking compensation for various disabilities that he contends are the result of a September 1989 VA cystectomy and conduit surgery for bladder cancer, which became complicated and necessitated further surgeries and/or procedures, including a tracheotomy, a fasciotomy of the left leg, and a blood transfusion. Pursuant to the Board's March 2020 remand, a VA opinion was obtained in August 2021. Following a detailed review of the claims file and pertinent evidence, the August 2021 VA examiner opined essentially that all of the Veteran's procedures were medically necessary, that the Veteran had multiple risk factors for femoral vein thrombosis that were "beyond the control of the provider," that there was no injury due to "wrong technique," and that it was less likely than not that there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in performing the surgery. However, for the following reasons, the Board finds the opinion to be insufficient. Initially, while the examiner found that the Veteran's tracheostomy and left calf fasciotomy were caused or contributed to by the September 1989 bladder surgery, he did not clearly find whether such events were reasonably foreseeable. He wrote that it was less likely than not that there were risks that an ordinary provider "would not have considered to be an ordinary risk of the treatment provided, not what the treating physicians might have actually foreseen in treating the Veteran." However, the examiner did not specifically find or explain how the tracheostomy and left calf fasciotomy were reasonably foreseeable risks associated with a cystectomy and conduit surgery. Nor did the examiner address the Veteran's theory of contention that his psoriasis/psoriatic arthritis was the result of a blood transfusion received as a result of the surgery and, instead, noted that the psoriasis "was due to another unknown etiology" without any elaboration or explanation for the conclusion. Additionally the examiner offered no rationale for his finding that there was no improper technique. As the medical evidence currently of record lacks clarity and consistency, an additional medical opinion is needed and, given the nature of the claim, the Board finds that an independent opinion should be obtained. On remand, additional efforts should be made to obtain relevant VA treatment records, including the informed consent from the September 1989 VA surgery. While additional records were obtained pursuant to the last remand, they did not contain the informed consent or any treatment records reflecting any discussion of the surgery with the Veteran beforehand. The matters are REMANDED for the following action: 1. Make another attempt to obtain VA treatment records dating since 1988 (or whenever the Veteran first sought treatment for symptoms subsequently diagnosed as bladder cancer), to include all records related to treatment and procedures occurring prior to the 1989 cystectomy, as well as any informed consent forms related to the 1989 VA procedures at issue. 2. Notify the Veteran and his representative that VA is requesting an advisory medical opinion pursuant to 38 U.S.C. § 5109 regarding the issue of entitlement to compensation under 38 U.S.C. § 1151 for various disabilities associated with a September 1989 surgery. 3. Then, pursuant to 38 U.S.C. § 5109, forward the Veteran's claims file to a non-VA, independent medical expert in the field of urologic oncology, or urology, or general surgery. If an expert in one of these fields is not available, explain why the clinician selected to provide the requested opinion is qualified to render the opinions requested by the Board. The entire claims file, including a copy of this Remand, must be made available to and must be reviewed by the expert. Thereafter, the expert should address the following: (a) Identify all currently diagnosed cystectomy, fasciotomy, and tracheotomy residuals, to include disability related to postphlebitic syndrome, nerve damage, difficulty swallowing, psoriasis, and psoriatic arthritis. In doing so, the examiner should note that the term "current" means occurring at any time during the pendency of the Veteran's claim (i.e., from December 2014 onward). The disorder need not be present at the time of the opinion; rather it is sufficient if it previously existed during the pendency of the claim (beginning in December 2014) and then resolved prior to the authoring of the opinion. (b) With respect to each diagnosed disorder, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that such was caused by or contributed to by the Veteran's September 1989 VA surgeries. Please explain why or why not. In providing this opinion, the examiner should comment on the Veteran's contention that his psoriasis and psoriatic arthritis were the result of a blood transfusion during the surgeries, as he does not have a family history of those conditions. (c) If the surgery caused or contributed to an identified disorder, what is the likelihood that there was carelessness, negligence, lack of proper skill, error in judgment or similar instances of fault on VA's part in performing this surgery? Please explain why or why not, with discussion of (1) whether the surgery was medically necessary based on the Veteran's diagnosis; and (2) the 2015 and 2019 opinions of the former VA physician that the surgery should not have been performed absent evidence of muscle invasion, and that the bilateral femoral thrombosis pointed to an "error in technique." (d) If the surgery or surgeries caused or contributed to an identified disorder, was the disorder an event not reasonably foreseeable? In answering this question, the examiner is asked to consider whether the tracheostomy, bilateral femoral thrombosis, post-phlebitic syndrome, left leg compartment syndrome, and nerve damage were risks that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided, not what the treating physicians might have actually foreseen in treating the Veteran. In providing the opinion, the examiner should also address the 2019 private opinion that bilateral femoral thrombosis was not a common complication, and that nerve damage was unusual. A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.).] S. C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Fagan 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.