Citation Nr: 22018607 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 18-47 580 DATE: March 29, 2022 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for residuals of esophageal surgery is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1968 to September 1970, to combat service while serving in Vietnam from February 1969 to September 1970. The Veteran's decorations include the Silver Star for combat service in Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2021. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of esophageal surgery is remanded. Under certain circumstances, VA provides compensation for additional disability resulting from VA medical treatment in the same manner as if such disability were service connected. See 38 U.S.C. § 1151. For a claimant to qualify for such compensation, the additional disability must not be the result of the veteran's willful misconduct, and such disability must be caused by hospital care, medical or surgical treatment, or examination furnished to the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility. 38 U.S.C. § 1151(a). For a claimant to be entitled to compensation when additional disability is caused by VA hospital care, medical or surgical treatment, or examination, the proximate cause of the additional disability must be: (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care, treatment, or examination; or (b) an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361. To determine whether a veteran has additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination upon which the claim is based to the veteran's condition after such care, treatment, or examination is completed. Here, the Veteran asserts that he is entitled to compensation benefits under 38 U.S.C. § 1151 for residuals of esophageal surgery, to include an additional hernia, inability to eat or keep food down, and gastroesophageal reflux disease (GERD). See November 2021, Hearing transcript; September 2019, VA Form 21-526. In August 2013, the RO obtained a medical opinion indicating that the "claimed disability" was caused by treatment received by VA as a result of an "intraoperative technical error." The medical opinion did not specifically identify the "claimed disability" but stated the following "morbidities" were the result of the technical error: dehiscence of the abdominal incision, structuring of the esophagogastric anastomosis, and incisional hernia. See August 2013, Third party correspondence. The Board finds that an independent expert medical opinion should be obtained pursuant to 38 U.S.C. § 5109 because an addendum to the August 2013 medical opinion is necessary as the medical opinion failed to indicate: (1) whether the identified "morbidities" are "additional disabilities" within the meaning of 38 U.S.C. § 1151; and (2) whether the "intraoperative technical error" was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care, treatment, or examination. The matter is REMANDED for the following action: 1. Obtain any outstanding VA medical records. 2. Obtain an advisory medical opinion from an independent medical expert (IME), pursuant to 38 U.S.C. § 5109, regarding residuals the Veteran's May 2012 hiatal hernia surgery. Specifically, the IME should opine as to the following: Whether it is at least as likely as not that the Veteran developed an additional disability, within the meaning of 38 U.S.C. § 1151, caused by his May 2012 hiatal hernia surgery. If so, please identify the additional disabilities. In so opining, the IME should address whether an incisional hernia, inability to eat or keep food down, GERD, dehiscence of the abdominal incision, and structuring of the esophagogastric anastomosis are additional disabilities within the meaning of 38 U.S.C. § 1151. For each additional disability identified in (a), state whether it is at least as likely as not that it was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in its treatment of the Veteran during the May 2012 hiatal hernia surgery. For each additional disability identified in (a), state whether the development of that disability was an event not reasonably foreseeable. That is, was developing the additional disability the type of risk that a reasonable health care provider would have disclosed. In providing the requested opinions, the IME should include a complete rationale for all expressed opinions. If the IME feels that any of the requested opinions cannot be rendered without resorting to speculation, he or she must state why. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Straughn, Shavonne 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.