Citation Nr: 21075995 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-30 040 DATE: December 22, 2021 REMANDED Entitlement to compensation for obstructive sleep apnea (OSA) pursuant to 38 U.S.C. § 1151 is remanded. Entitlement to compensation for a respiratory disability, to include chronic obstructive pulmonary disease (COPD), reactive airway disease/bronchospasm, and asthma, pursuant to 38 U.S.C. § 1151 is remanded. Entitlement to compensation for an acquired psychiatric disorder, to include depressive disorder, pursuant to 38 U.S.C. § 1151 is remanded. Entitlement to compensation for claudication, claimed as a walking condition, pursuant to 38 U.S.C. § 1151 is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1963 to July 1965. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to compensation for sleep apnea claimed as a sleeping condition, a respiratory condition also claimed as wheezing and difficulty breathing, claudication claimed as a walking condition, and anxiety also claimed as stress under 38 U.S.C. § 1151. In June 2015, VA received the Veteran's Notice of Disagreement (NOD). In February 2018, the RO issued a Statement of the Case (SOC). In April 2017, VA received the Veteran's VA Form 9 appeal to the Board. In November 2020, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony is associated with the claims file. In January and March 2021, the Board remanded the case for further development and adjudicative action. 1. Entitlement to compensation for OSA pursuant to 38 U.S.C. § 1151. 2. Entitlement to compensation for a respiratory disability, to include COPD and reactive airway disease/bronchospasm, and asthma, pursuant to 38 U.S.C. § 1151. 3. Entitlement to compensation for an acquired psychiatric disorder, to include depressive disorder, pursuant to 38 U.S.C. § 1151. 4. Entitlement to compensation for claudication, claimed as a walking condition, pursuant to 38 U.S.C. § 1151. In the March 2021 remand, the Board sought a VA opinion regarding whether the Veteran incurred any additional disabilities as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing an August 1986 esophagogastrectomy, or alternatively, whether the August 1986 esophagogastrectomy resulted in any additional disabilities that were due to an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1)(A-B); 38 CFR § 3.361(d)(1-2). With regard to both theories, the Board instructed the reviewing examiner to consider the Veteran's contention that the August 1986 esophagogastrectomy resulted in a mechanical defect of the esophagus, which, in turn, resulted in chronic aspirating pneumonia and development of OSA, a respiratory disability, and an acquired psychiatric disorder. On remand, the RO obtained a VA opinion regarding the Veteran's claims under 38 U.S.C. § 1151 in July 2021. In the July 2021 opinion, the examiner concluded that the Veteran's diagnosed asthma was "at least as likely as not due to aspiration causing irritation to the lining." Furthermore, the examiner found that the Veteran's OSA was "more likely due to asthma" and cited literature showing a correlation between asthma and OSA. However, the examiner noted that the Veteran's COPD was "less likely due to [the] esophagogastrectomy" because there was "no medical research to provide nexus." Additionally, in a May 2021 VA psychiatric opinion, a VA psychologist opined that the Veteran's diagnosed depressive disorder was at least as likely as not related to the Veteran's surgical complications. The July 2021 examiner stated that the aspirating pneumonia, which had led to the development of asthma and OSA, was a complication of the August 1986 esophagogastrectomy. Specifically, the examiner noted that the aspirating pneumonia was a result of periesophageal herniation incident to the surgery. Furthermore, the examiner found that the periesophageal herniation was a "common complication" of esophagogastrectomy. However, the examiner did not state whether the aspirating pneumonia itself was not foreseeable, i.e. not an ordinary risk of the surgery. In light of the above, an additional remand is warranted for consideration of whether chronic aspirating pneumonia was not a foreseeable risk of the August 1986 esophagogastrectomy. Finally, the issue of entitlement to compensation for claudication pursuant to 38 U.S.C. § 1151 is inextricably intertwined with the above remanded issues. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). In remanding this matter, no finding is made, 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. The matters are REMANDED for the following action: 1. Obtain a medical opinion from a physician (if possible, a gastroenterologist) who has the expertise to answer these complicated medical questions regarding the Veteran's claim for compensation pursuant to 38 U.S.C. § 1151 for development of additional disabilities. The contents of the entire, electronic claims file, to include a complete copy of this Remand, must be made available to the designated physician, and the opinion must reflect full consideration of the Veteran's documented medical history and the Veteran's assertions. Based on the May and July 2021 VA opinions discussed in this remand, the Veteran developed asthma, obstructive sleep apnea, and depressive disorder as a result of chronic aspirating pneumonia, which was found to be due to a common complication of periesophageal herniation incident to the 1986 esophagogastrectomy; however, it is unclear whether chronic aspirating pneumonia is a common complication of periesophageal herniation. Following a review of all the relevant evidence and considering accepted medical principles, the reviewing physician is requested to state whether it is it as least as likely as not (a 50 percent probability or greater) that the aspirating pneumonia is an event that is not reasonably foreseeable (i.e. not a common complication or common risk) when there is a common complication of periesophageal herniation as a result of the August 1986 esophagogastrectomy. In other words, is the aspirating pneumonia an additional disability that is a reasonably foreseeable (ordinary) risk of the surgery? In determining whether an event is not reasonably foreseeable, the standard is what a "reasonable health care provider" would have considered to be an ordinary risk of treatment that would be disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32, which require the primary health care provider to explain the reasonably foreseeable risks associated with the surgery or treatment being provided. The examiner should consider any consent documents associated with the record, including a Request for Administration of Anesthesia and for Performance of Operations and Other Procedures dated August 1986 and the Veteran's lay statements during the November 2020 Board hearing. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Small, Attorney Advisor 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.