Citation Nr: 21014571 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 17-30 040 DATE: March 15, 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) and reactive airway disease/bronchospasm, pursuant to 38 U.S.C. § 1151 is remanded. Entitlement to compensation for a psychiatric disability, to include generalized anxiety disorder and a sleep 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 2021, the Board remanded the case for further development and adjudicative action. In February 2021, the Veteran’s representative notified the Board that they did not have any additional evidence to submit and instructed the Board to proceed with adjudication of the appeal. 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, pursuant to 38 U.S.C. § 1151. The Veteran claims that he developed OSA and a respiratory disability, described as COPD with aspiration and a reactive airway disease/bronchospasm, as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault following an August 1986 esophagogastrectomy performed by VA staff. Specifically, the Veteran alleges that: (1) VA furnished the procedure without advising him of the full scope of the procedure, including as to how much of the esophagus would be removed, and possible complications that could result, including chronic aspirating pneumonia, which, the Veteran contends caused his OSA and respiratory disability; and, (2) the VA surgeon who performed the procedure committed an error in judgment by removing more of the Veteran’s esophagus than was necessary to excise his Barrett’s esophagus, a precancerous condition of the esophagus associated with gastroesophageal reflux disease (GERD). In the January 2021 remand, the Board sought VA opinions for the OSA and respiratory disability regarding nexus of the OSA and respiratory disability to any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA staff. The Board instructed the examiner to consider VA treatment records. In January 2021, several VA opinions were associated with the claims file. None of these opinions relates to the claimed respiratory disability. However, one of the opinions addresses OSA. In this regard, the examiner proposed a link between aspiration and OSA, and found that “patients with COPD are susceptible to aspiration.” However, he concluded that “no records have been found to support frequent pneumonia” associated with aspiration. Additionally, the examiner noted that “changes in lung volume cannot be pinpointed alone due to multiple causes of aspiration.” Finally, he found that “the mentioned surgery involved the lower part of the esophagus and [it is] anatomically not possible to affect the upper digestive organs including the upper respiratory organs.” Therefore, the examiner concluded that the Veteran’s OSA was less likely than not a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part or failure to exercise the degree of care that would be expected of a healthcare provider. Initially, VA treatment records indicate numerous references to aspirating pneumonia. A May 2013 gastroenterology consult revealed that the Veteran had been hospitalized with aspirating pneumonia 3 times within the past month. See gastroenterology consult note dated May 17, 2013. Other records document emptying of the Veteran’s gastric contents into his chest. December 2013 private treatment records show that the Veteran’s frequent regurgitation was “presumably” related to aspiration with an evaluation showing “a herniation of a substantial amount of abdominal contents around the gastric conduit into both the right and left aspects of the chest through the posterior mediastinum.” A conference of private physicians concluded that “the majority of [the Veteran’s] symptomatology was likely related to the mechanical factors and the bulk of the herniated periesophageal contents.” See December 2013 Northwestern Memorial operative report. More recent VA treatment records from December 2019 show that the purpose of December 2013 esophageal repair was to “open [the] esophageal sphincter allowing more rapid transit of foot and less aspiration.” Although breathing was improved following the procedure, “pneumonia, aspiration” remained a problem. VA treatment records from February 2019 reveal hospitalization at a private hospital for recurrent aspiration pneumonia. See physician outpatient note dated February 14, 2019. Given the above, the January 2021 examiner relied on an inaccurate premise regarding the Veteran’s history of recurrent aspirating pneumonia. Furthermore, the examiner provided no reasons supporting the conclusion that the lower part of the esophagus cannot affect the upper digestive and respiratory tracts; in light of evidence that the Veteran’s esophageal defect causes gastric contents to spread throughout the chest, this conclusion is also inconsistent with the medical evidence of record. As a result, remand for a new VA opinion which fully addresses the evidence of record is warranted. Additionally, the January 2021 examiner offered no opinions regarding whether informed consent prior to the August 1986 esophagogastrectomy was adequate, given the risks of the procedure or whether the excised portion of the esophagus was larger than necessary and constituted an error of judgment by the VA surgeon who performed the procedure. Finally, as noted in February 2019 VA treatment records, the Veteran reported hospitalization for aspirating pneumonia at a private hospital in approximately 2019. These records have not been associated with the claims file. Additionally, the Veteran has repeatedly claimed that he received over 30 years of treatment at the Hines VAMC; however, only records from 2008 are currently in the claims file. See July 2014 Veteran statement. On remand, the RO should attempt to locate these VA and private treatment records and any other private treatment records identified by the Veteran as relevant to the claims. 3. Entitlement to compensation for a psychiatric disability, to include generalized anxiety disorder and a sleep disorder, pursuant to 38 U.S.C. § 1151. In a January 2021 VA opinion addressing the Veteran’s claimed psychiatric disability, the examiner noted that there was no psychiatric diagnosis of record. However, the examiner indicated that, as of 2008, the Veteran was taking alprazolam, a benzodiazepine used to treat anxiety and panic disorders, to treat an apparent sleep disorder. Recent VA treatment records identify alprazolam (taken at bedtime) as an active, non-VA medication. See physician outpatient note dated December 6, 2019. The January 2021 VA examiner concluded that, as the Veteran had a current alprazolam prescription as of resumption of VA treatment in 2008, private treatment records from between 1986 to 2008 may reveal a psychiatric diagnosis and recommended further review “if mental health care records PRIOR to 2008 show that the sleep problem was specifically related to the claimed treatment.” Prior VA treatment records show that the Veteran slept upright in a recliner for over twenty years following his August 1986 esophagogastrectomy to control reflux at nighttime. The Veteran has identified Dr. B.C. as a private treatment provider during the interval between 1986 and 2008. See Dr. B.C., May 1989 letter. Given the above, there is a suggestion that private treatment records from prior to 2008 may contain relevant mental health treatment and diagnoses. Furthermore, as there is some evidence of a psychiatric diagnosis and an indication that the Veteran’s sleep symptoms may be associated with the August 1986 esophagogastrectomy, on remand, the RO should provide the Veteran with a full VA psychiatric examination following the attempt to locate relevant private treatment records. 4. Entitlement to compensation for claudication, claimed as a walking condition, pursuant to 38 U.S.C. § 1151. There is no diagnosis of claudication of record. However, as noted above, the Veteran may have substantial outstanding treatment records. Accordingly, 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). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records, including all VA treatment records from the Hines, Illinois VAMC dated since approximately 1985; and, with appropriate authorization, obtain any additional private treatment records identified by the Veteran as pertinent to his claims, including treatment records from Edward Hospital in Naperville, Illinois and from Dr. B.C., a primary care provider. 2. Thereafter, 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, to include obstructive sleep apnea and a respiratory disability, to include COPD and reactive airway disease/bronchospasm, following an August 1986 esophagogastrectomy performed by VA. Specifically, the examiner should address the Veteran’s contention that the August 1986 procedure created a mechanical defect of the esophagus which, in turn, resulted in aspiration of gastric contents into the chest and the development of obstructive sleep apnea and a respiratory disability (diagnosed as COPD) as a result. 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 appellant’s assertions. Following a review of all the relevant evidence and considering accepted medical principles, the reviewing physician is requested to answer the following questions: (a.) Is it at least as likely as not (a 50 percent probability or greater) that any additional disability, to include obstructive sleep apnea and a respiratory disability (diagnosed as COPD), resulted from the August 1986 esophagogastrectomy? The examiner should consider the Veteran’s lay statements and documented medical evidence of aspiration and recurrent aspirating pneumonia. Additionally, the examiner should address a Northwestern Memorial Hospital surgical report dated December 2013, which identifies periesophageal herniation of abdominal contents into the chest due to “mechanical factors” and attribution of the Veteran’s symptoms to the periesophageal herniation. (b.) If the answer to (a.) is affirmative, is it as least as likely as not that any additional disabilite(s), to include obstructive sleep apnea and a respiratory disability (diagnosed as COPD), were caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the August 1986 esophagogastrectomy? The examiner should consider the August 1986 Hines VAMC operative report for the esophagogastrectomy and the Veteran’s lay statements regarding the procedure during the November 2020 Board hearing. (c.) Alternatively, if the answer to (a.) is affirmative and the answer to (b.) is negative, is it as least as likely as not that that any additional disabilite(s), to include obstructive sleep apnea and a respiratory disability (diagnosed as COPD), were outcome(s) if the August 1986 esophagogastrectomy that were due to an event not reasonably foreseeable; i.e. is the additional disability 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 requires 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. (d.) If VA and/or private treatment records show a diagnosis of claudication, the examiner should answer (a.) through (c.) as to claudication.  3. If the Veteran incurred any additional disability, to include obstructive sleep apnea and a respiratory disability (diagnosed as COPD) due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the August 1986 esophagogastrectomy or by due to an event not reasonably foreseeable from the procedure, obtain a VA opinion regarding the nature and etiology of the Veteran’s claimed psychiatric disability, to include a sleep disorder. The claims file, including a copy of this Remand, must be made available to and reviewed by the examiner, and the examiner should provide an indication that the claims file was reviewed in connection with the opinion. A rationale for all opinions must be provided. The examiner should address whether the Veteran has a current psychiatric diagnosis and opine whether it is at least as likely as not that any diagnosed psychiatric disability is proximately due to or aggravated by his obstructive sleep apnea, COPD, or any other disability incurred as a result of the August 1986 esophagogastrectomy and compensable under 38 U.S.C. § 1151 (as defined in the paragraph immediately above). In particular, the examiner should address prescription of alprazolam for sleep difficulties. (Continued on the next page) 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.