Citation Nr: 21042098 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-22 113 DATE: July 12, 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. This issue was previously before the Board in December 2019 and March 2021, at which time, the issues were remanded to the AOJ for additional development. This case has now been returned to the Board for further appellate action. 1. 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. Pursuant to the March 2021 Board remand, the AOJ obtained an addendum opinion in June 2021. The Board's March 2021 remand requested that the examiner consider and address: (1) 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; (2) 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 (3) whether the Veteran's post-surgical abdominal wall laxity was the type of risk that would have been disclosed in connection with informed consent procedures. The June 2021 VA examiner opined that the Veteran's hernia, was less likely than not caused by carelessness, negligence, lack of skill, error, or fault due to the lack of treatment of the Veteran's strong gag reflux following the surgical procedure; and the examiner noted that medical literature did not mention herniation as a common complication of nephrectomy. The examiner noted that after an endotracheal tube had been removed after the surgical procedure, the Veteran continued to gag violently for several days while still in the hospital. The examiner noted that a sore throat was the most common complication of intubation; and other complications included hypoxia, hemodynamic changes, aspiration, bronchospasm, and airway trauma. The examiner opined that what the Veteran experienced was a normal variant of the side effects of intubation, which was exacerbated by his known history of a strong and sensitive gag reflex. The examiner did not discuss whether complications of intubation were the type of risk that would have been disclosed in connection with informed consent procedures. Thus, the Board finds that a supplemental VA opinion is warranted to determine the etiology of the Veteran's condition. Further, the Board notes that the evidence of record indicates that there may be outstanding relevant VA treatment records. In May 2021, the Veteran's representative asserted that the Veteran's file does not contain quality assurance records and nurses notes from the June 2012 procedure and requested that the claim be remanded to obtain such records. Further, the Board notes that a June 2012 VA anesthesiology pre-operative note indicates that the Veteran was informed of anesthesia options including the type of anesthesia, the risks involved, and the name and qualifications of the person administering the anesthesia, and referenced VA 10-181-506 preanesthetic evaluation form; however, the Veteran's file does not contain a copy of the form. Any VA treatment records are within VA's constructive possession and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. The matters are REMANDED for the following action: 1. The AOJ should ensure that the Veteran's complete VA treatment records related to the June 2012 surgical procedure, including quality assurance records, nurses notes, and VA 10-181-506 preanesthetic evaluation form, are obtained and associated with the record on appeal. 2. Following the receipt of outstanding records, 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 whether the complications of intubation are the type of risks that would have been disclosed in connection with informed consent procedures. 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.