Citation Nr: 21012573 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-22 113 DATE: March 4, 2021 REMANDED Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional disability of the abdomen as a result of kidney surgery performed at the Ann Arbor VA Medical Center (VAMC) on June 8, 2012 is remanded. REASONS FOR REMAND The Veteran served in the United States Army from September 1961 to June 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in July 2015. The Board remanded the case to the AOJ in December 2019. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional disability of the abdomen as a result of kidney surgery performed at the Ann Arbor VAMC on June 8, 2012 is remanded. The Veteran asserts that he has additional disability of the abdomen, due to kidney surgery on June 8, 2012 at the Ann Arbor VAMC. At a September 2019 Board hearing, the Veteran testified that the Ann Arbor VAMC negligently failed to provide the Veteran with necessary medication to prevent him from gagging. The Veteran testified that he began gagging the same day he got out of surgery due to prior problems with his gag reflex and had requested medication to treat the condition; however, the treatment providers did not give him the medication until the next day, after he had developed the abdominal bulge. The Board’s December 2019 remand requested that the examiner consider and address the following: 1) whether the Veteran had an abdominal disability, to include hernia and/or abdominal wall laxity; 2) whether it was at least as likely as not (a 50 percent or greater probability) that the June 2012 nephrectomy caused additional disability to the Veteran’s abdomen; 3) whether it was at least as likely as not (a 50 percent or greater probability) that the post-surgical treatment, following the June 2012 nephrectomy caused additional disability to the Veteran’s abdomen. If additional disability of the abdomen resulted from VA treatment, the examiner was asked to address: 4) whether it was caused by carelessness, negligence, lack of proper skill, error in judgment, or fault on the part of VA; 5) whether it was a reasonably foreseeable result of VA’s treatment (primary health care provider explained the reasonably foreseeable risks associated with VA treatment or services furnished the Veteran); 6) whether the additional disability to the Veteran’s abdomen was the type of risk that would have been disclosed in connection with informed consent procedures; and 7) the examiner was asked to address the Veteran’s contention that he was not given medicine for his gagging, which would have prevented additional disability to the Veteran’s abdomen. In accordance with the December 2019 Board remand, the Veteran was afforded a VA examination in September 2020; and VA obtained an addendum opinion in October 2020. The Board finds that the September 2020 VA examiner essentially addressed number 1), above, and the October 2020 VA examiner essentially addressed and considered numbers 2) and 3), above. Specifically, the September 2020 VA examiner diagnosed the Veteran with post-surgical abdominal wall laxity; and the October 2020 VA examiner opined that the Veteran’s abdominal laxity was plausibly due to multiple factors related to the June 2012 left nephrectomy, including the Veteran’s body mass index (BMI) of 32; and the fact that no hernia was present on 2014 and 2016 abdominal CT scans. Although, the October 2020 VA examiner found that that the Veteran’s abdominal wall laxity was plausibly due to multiple factors related to the June 2012 left nephrectomy, no VA examiner adequately addressed numbers 4) through 7). The October 2020 VA examiner opined that it was less as likely as not the claimed condition was caused by or became worse as a result of the VA treatment, additional disability from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel or additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider, and/or failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. However, the October 2020 examiner did not specifically discuss any details of the Veteran’s treatment to support his conclusion. Rather, the examiner made a conclusory statement that based upon a review of VA diagnosis and treatment was appropriate and timely, accepted appropriate protocols were followed, and the standard of care was met in this case. The examiner did not discuss whether the additional disability to the Veteran’s abdomen was the type of risk that would have been disclosed in connection with informed consent procedures; and the examiner did not address the Veteran’s contention that he had not been given medicine for his gagging, which would have prevented additional disability to the Veteran’s abdomen. Additionally, the Board notes that in April 2020, the Veteran has submitted a medication log from June 2012. No VA examiner has discussed or commented regarding whether the medication log supports the Veteran’s assertion that he had not been given medication, which could have prevented the Veteran’s post-surgical abdominal wall laxity. No VA examiner has discussed or commented regarding whether the medication log supports the Veteran’s assertion that he had not been given medication for his gagging, which could have prevented additional disability to the Veteran’s abdomen. See also June 2012 VA treatment records which reflect that the Veteran reported that he was feeling well, he had nausea, and he had been placed on a clear liquid diet after the operation; May 1999 VA treatment record which reflects that the Veteran reported symptoms of gagging when eating and nausea when not eating. Thus, the Board finds that a supplemental VA opinion is warranted to determine the etiology of the Veteran’s condition. The matters are REMANDED for the following action: Obtain a VA addendum opinion to ascertain the etiology of the Veteran’s post-surgical abdominal wall laxity. If a clinical evaluation is deemed necessary to answer the questions presented, one should be scheduled. The claims folder should be reviewed, including a copy of this Remand. Following a review of the Veteran’s record, the examiner should address the following: (a.) whether the Veteran’s post-surgical abdominal wall laxity was caused by carelessness, negligence, lack of proper skill, error in judgment, or fault on the part of VA; (b.) whether the Veteran’s post-surgical abdominal wall laxity was a reasonably foreseeable result of the VA’s treatment (primary health care provider explained the reasonably foreseeable risks associated with VA treatment or services furnished the Veteran); and (c.) whether the Veteran’s post-surgical abdominal wall laxity is the type of risk that would have been disclosed in connection with informed consent procedures. The examiner should also address the following: (a.) the Veteran’s contention that he had a history of gagging, which he had informed his treatment providers, but had not been given medication which would have prevented his post-surgical abdominal wall laxity; See September 2019 Board hearing; and (b.) VA treatment records which reflect complaints of chronic nausea and gagging prior to June 2012; May 1999, December 2002, March 2011, June 2011, and June 2012 VA treatments records; (c.) whether the June 2012 medication log supports the Veteran’s assertion that he had not been given medication for his gagging, which would have prevented his post-surgical abdominal wall laxity. In rendering the opinions, the examiner should consider the statements of the Veteran regarding the symptoms of his abdominal condition to be competent. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Johnson 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.