Citation Nr: 21028284 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-39 370 DATE: May 10, 2021 REMANDED Compensation benefits pursuant to 38 U.S.C. § 1151 for residuals of gallbladder surgery is remanded. REASONS FOR REMAND The Veteran, who is the Appellant, served on active duty from April 1971 to April 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision from the Regional Office (RO), which denied 1151 benefits for residuals of gallbladder surgery. In March 2021, the Veteran testified at a Board virtual hearing through the RO in Los Angeles, California, before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. 1151 benefits for residuals of gallbladder surgery is REMANDED for additional development. The Veteran asserts that his xiphoid bone damage and post-operative abdominal pains with certain movements were caused by a 1992 gallbladder surgery performed at Linda Loma VA Medical Center (VAMC). At the March 2021 Board hearing the Veteran contends that a blood vessel was cut during an attempted laparoscopic gallbladder removal such that the laparoscopic procedure transitioned to an open cholecystectomy that resulted in damage to the xiphoid bone during the procedure. The Veteran asserts that he developed abdominal pains six months post operation. The Veteran asserts that he underwent an additional surgery to remove a xiphoid mass as a result of damage done during the initial 1992 surgery. Additionally, the Veteran asserts that he continues to have abdominal pains with certain movements to present. A review of the shows that the Veteran underwent gallbladder surgery in February 1992. The surgical report indicates that informed consent was obtained for the surgery. In an August 2016 VA medical opinion, the VA examiner indicated that the surgical risks of the laparoscopic cholecystectomy were explained to the Veteran; however, the informed consent form for the February 1992 cholecystectomy has not been associated with the record. The informed consent form for the February 2011 excision of the xiphoid mass also has not been associated with the record. On remand, the RO should associate the informed consent forms for the February 1992 and February 2011 surgeries with the claim file. In the August 2016 VA medical opinion, the VA examiner noted that the Veteran the xiphoid bone mass was not caused by the February 1992 surgery. The VA examiner opined that the post-operative abdominal pains are more likely than not related to post-cholecystectomy syndrome (PCS); however, the examiner did not clearly opine whether the PCS was caused by VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care. As the 1992 consent form was is not currently of record, it is not clear whether the risk of PCS was disclosed to the Veteran prior to surgery. An addendum opinion would be helpful to assess whether a reasonable medical physician would have disclosed the risk of PCS to the Veteran when obtaining informed consent prior to the February 1992 gallbladder surgery. 1151 benefits for residuals of gallbladder surgery is REMANDED for the following action: 1. Contact the Linda Loma VA Medical Center and obtain and associate with the claim file a signed copy of the February 1992 and February 2011 informed consent forms. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and representative. 2. Return the VA medical opinion report to the VA examiner who provided the medical opinion in August 2016 for an addendum opinion. If the original VA examiner is unavailable, a new examiner may be assigned to address the requested opinion. The relevant documents in the record should be reviewed by the examiner and a detailed history of relevant symptoms should be obtained from the record. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The examiner should offer the following opinion: Is it as likely as not (50% or higher probability) that the Veteran had an additional disability of post-cholecystectomy syndrome (PCS) due to carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA during the February 1992 surgery and during the aftercare? The VA examiner should provide an opinion, based upon the specific facts and circumstances of this Veteran's case, regarding whether PCS was a reasonably foreseeable outcome of the gallbladder procedure. The examiner should opine as to whether a reasonable health care provider would have considered PCS to be an ordinary risk of gallbladder surgery, and whether the risk of PCS was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of the February 1992 gallbladder surgery. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna 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.