Citation Nr: 21040606 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-60 705 DATE: July 6, 2021 REMANDED Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for cirrhosis of liver is remanded. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for bile duct stricture, status post gallbladder surgery is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1978 to April 1981 and from October 1982 to July 1984. The Veteran died in June 2020. The appellant is the Veteran's surviving spouse who has been substituted as the claimant for this appeal. The case was previously before the Board in November 2019. At that time, compensation under the provisions of 38 U.S.C. § 1151 was denied. The appellant appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). The Board's decision was vacated and remanded pursuant to a February 2021 Joint Motion for Remand (JMR). Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for cirrhosis of liver and bile duct stricture, status post gallbladder surgery is remanded. The parties to the February 2021 JMR agree that the Board's November 2019 decision was inadequate for several reasons, including that the Board erred in relying on two medical opinions that did not clearly set forth their factual foundations, primarily whether the examiners accepted the premise that a surgical clip was mistakenly left on the Veteran's gall bladder during the 2005 surgery that is the basis for the claim of compensation benefits. As noted, both of the VA medical opinions obtained in this case failed to explicitly state whether they were based upon the factual foundation that a surgical clip was left on the Veteran's bile duct during the 2005 surgery. The initial opinion rendered in 2015 questioned the premise that a surgical clip was left in the Veteran in 2005 and suggested that the event might not have occurred because the clip was not discovered during an endoscopic procedure in 2006. As observed in the February 2021 JMR, this opinion did not, however, explain why an endoscopic procedure would have necessarily discovered the clip and did not address the records dated in 2013 that found a clip on the bile duct in 2013 and failed to suggest a theory of how the surgical clip could have been found on the bile duct in 2013 other than it being left during the removal of the gall bladder in 2005. The opinion also suggested that it was based only on whether the conditions at issue were caused by a clip placed improperly during the surgery, but not whether they were caused by a clip being mistakenly left in place after the surgery was completed. As for the October 2016 VA medical opinion, the parties to the JMR found that the opinion lacked a discussion of the evidence that was considered and the rationale for the opinion. Specifically, the examiner did not address the surgical clip found in 2013 or provide any analysis as to why this would not be the fault on the part of VA. For these reasons, the JMR indicated a new medical opinion that was explicitly based upon a full and accurate factual foundation was necessary in this case. Given this an additional medical opinion is necessary. The matters are REMANDED for the following action: Obtain an addendum opinion from the VA examiner who provided the October 2016 VA opinion. If this examiner is unavailable, another qualified medical professional may provide this opinion. A copy of Veteran's claims file, to include a copy of this remand and the February 2021 JMR, must be made available for review. Following a thorough review of all the medical and lay evidence of record, the medical professional must state: a) Whether it is as least as likely as not (50 percent or greater probability) that any additional disability resulting from a surgical clip that was found in 2013, was the direct result of VA carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA. The examiner must specifically render an opinion regarding whether the surgical clip was the result of the 2005 surgery performed at the VA facility. b) Whether it is at least as likely as not (50 percent probability or higher) that any additional disability resulting from a surgical clip identified in 2013, was proximately caused by an event not reasonably foreseeable. The examiner should specifically address the objections noted in the February 2021 JMR. (Continued on the next page) A complete rationale for all opinions rendered must be fully explained with a discussion of the pertinent evidence of record, as well as the medical principles involved, which led the medical professional to his or her conclusion. If the medical professional cannot provide a medical opinion without resorting to speculation, he or she must indicate why this is so. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph P. Gervasio 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.