Citation Nr: 22017459 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 18-19 012A DATE: March 25, 2022 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for residuals of gastroesophageal reflux disease (GERD) surgery is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from May 1974 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. In March 2022, the Veteran requested that her appeal be expedited. To the extent that such is a motion for advancement on the docket (AOD), the Board finds that the motion must be denied. Appeals must be considered in docket number order but may be advanced if sufficient cause is shown. See 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). Sufficient cause includes "advanced age" (defined as 75 years or more), serious illness, severe financial hardship, or administrative error resulting in a significant delay. Any motion for advancement should be supported by pertinent documentation. The Board has considered the Veteran's motion and finds that the Veteran has not submitted sufficient evidence to demonstrate the necessity of an AOD. Specifically, she has not submitted any supporting documentation showing severe financial hardship, administrative error resulting in a significant delay, or serious illness as contemplated by 38 C.F.R. § 20.902 (c)(1). Additionally, the Veteran does not meet "advanced age" requirement. Id. In the absence of evidence showing sufficient cause, the motion is denied. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of GERD surgery. The Veteran contends that she is entitled to compensation pursuant to 38 U.S.C. § 1151 (§ 1151) for residuals of GERD surgery. Specifically, she contends that the Nissen Fundoplication she underwent to treat her GERD was performed negligently and has caused her to experience additional and more severe symptoms. VA treatment records show that the Veteran underwent a Nissen Fundoplication in August 2009 to treat severe GERD that did not improve with other treatment options. The Veteran contends that surgery was performed negligently and either failed or that the wrap was placed too tight. As a result, she reports that she has experienced progressive gastrointestinal symptoms, including epigastric/abdominal pain, nausea, difficulty eating and swallowing, an inability to burp or vomit, coughing/choking, difficulty sleeping/needing to sleep at a 90-degree angle, and issues with bowel movements. She also has contended that the surgery has caused a buildup of gas that has broken two of her ribs, and she also has contended that the surgery has caused issues with her heart. No opinion has been obtained that addresses the Veteran's claim for compensation under § 1151. As such, on remand, an opinion should be obtained to determine whether any additional disability is a result of the August 2009 surgery and if so, whether such was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or due to an event not reasonably foreseeable. Moreover, VA treatment records show that a signed consent form was obtained on August 11, 2009, for the August 2009 surgery. Although treatment records note that the form is available in Vista Imaging, a copy of the signed consent form is not of record. Accordingly, on remand, the RO should obtain the October 2015 informed consent form as well as the PDF file referenced in the November 2015 VA treatment record. The matters are REMANDED for the following action: 1. Obtain copies of all signed consent forms associated with the Veteran's August 11, 2009, Nissen Fundoplication surgery at the Houston VA Medical Center. All efforts to obtain the records must be documented in the claims file. 2. Obtain a VA medical opinion from an appropriate clinician regarding the Veteran's claim for residuals of GERD surgery under § 1151. If the opinion cannot be provided without and examination, one should be scheduled. The examiner should review the claims file, including a copy of this REMAND. The examiner is asked to opine: a) Whether it is at least as likely as not that any of the current symptomatology, including epigastric/abdominal pain, nausea, difficulty eating and swallowing, an inability to burp or vomit, coughing/choking, difficulty sleeping/needing to sleep at a 90-degree angle, and issues with bowel movements are a result of the August 2009 Nissen Fundoplication performed at the Houston VA Medical Center. The examiner also is asked to address, 1) whether the rib fractures the Veteran experienced in May 2012 were a result of gas build up caused by the August 2009 surgery, and 2) whether the Veteran has a heart disability as a result of the August 2009 surgery. In so opining, the examiner also should address the Veteran's contention that her current symptoms are a result of the August 2009 surgery failing/the wrap being placed too tightly. b) If the examiner finds that any of the Veteran's symptomatology was caused by the August 2009 surgery, the examiner should opine whether it is at least likely as not that any such symptomatology was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the surgical treatment in question. When making this determination, please discuss if VA failed to exercise the degree of care that would be expected of a reasonable health care provider. In so opining, the examiner should address the Veteran's contention that VA was negligent in performing the surgery by making the wrap too tight. If the examiner finds that the August 2009 Nissen Fundoplication failed, the examiner should address whether such failure was proximately caused by the VA treatment. c) If the response to question (b) is negative, the examiner should opine whether it is at least as likely as not that any symptomatology caused the August 2009 surgery was an event not reasonably foreseeable. 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. A complete rationale must be provided for all opinions expressed. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Mortimer, Associate Counsel 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.