Citation Nr: 22051138 Decision Date: 09/08/22 Archive Date: 09/08/22 DOCKET NO. 16-31 459 DATE: September 8, 2022 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for residuals of surgery, to include changes in sleeping and eating habits and always sick, is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of surgery, to include aggravation of hiatal hernia, is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from January 1973 to February 1975. In August 2019, the Veteran and his spouse testified at a Board hearing before the undersigned at the RO, and a transcript of that hearing is of record. In June 2021, the Board denied entitlement to compensation under 38 U.S.C. § 1151 for residuals of surgery, to include changes in sleeping and eating habits and always sick, and aggravation of hiatal hernia. The Veteran appealed the issues to the United States Court of Appeals for Veterans Claims (Court), and in April 2022, the Court granted a Joint Motion for Partial Remand (JMPR), vacating and remanding the issues. 1. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of surgery, to include changes in sleeping and eating habits and always sick, is remanded. 2. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of surgery, to include hiatal hernia aggravation, is remanded. The Veteran asserts that in July 2014, he was admitted to the James Haley VA hospital for a hiatal hernia surgery. While under anesthesia, before he had the surgery, he went into cardiopulmonary arrest. He coded for 25-30 minutes, and since then, he has had a very hard time in his daily life. He had panic attacks, memory problems, could not sleep, had little energy, got sick "out of nowhere," felt like throwing up, and felt dizzy. The Veteran's spouse testified in the Board hearing that the Veteran was given too much anesthesia, he died for more than 20 minutes, and that he has never been the same since then. See the July 2015 statement, August 2019 Board hearing transcript. VA treatment records indicate that the Veteran was scheduled for a laparoscopic Nissen fundoplication procedure for a hiatal hernia and reflux on July 2, 2014, at the James Haley VA Medical Center. After he was placed under anesthesia, he developed sudden cardiac arrest, underwent resuscitation, and was taken to the cardiac catheterization lab where he was found to have takotsubo (stress) cardiomyopathy. The Veteran was intubated, sedated, and the hypothermia protocol was performed. On July 8, the Veteran self-extubated, which caused trauma to his airway. He was reintubated and had a tracheotomy on July 10. The Veteran was discharged from the hospital on July 22, 2014. The Board notes as a preliminary matter that entitlement to compensation under 38 U.S.C. § 1151 for residuals of surgery, to include cardiac arrest and/or a heart condition, was denied in a January 2020 Board decision. This issue is not on appeal. In the June 2021 Board decision that denied the claims for compensation under 38 U.S.C. § 1151 for residuals of surgery, to include changes in sleeping and eating habits and always sick, and aggravation of the hiatal hernia, the Board relied, in part, on a September 2020 VA medical opinion. The examiner noted that the cause was not apparent at the time of the event, but the Veteran was treated correctly by all medical standards. Informed consent includes discussion of risks, which would have included a cardiac event. The specific event of takotsubo cardiomyopathy was "exceedingly rare," and without an immediate response and appropriate performance, the Veteran more likely than not would have died. Though unfortunate, it was less likely than not that the cardiac arrest was due to or incurred in any breach of the medical standard of care by VA. Regarding the hiatal hernia, eating problems, and sleeping issues, the examiner indicated that these issues were "effectively rendered moot." However, if there was post-event dysphagia, the source would have to be investigated, but involvement due to the cerebrovascular compromise during the 30-minute CPR and residuals would have to be ruled out. This applied to the claimed sleep problems as well. As noted in the April 2022 JMPR, the Board did not sufficiently discuss whether, because the Veteran's takotsubo cardiomyopathy was "an exceedingly rare event," it was "an event not reasonably foreseeable" such that "a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided." The Board also did not address the examiner's finding that if there was post-event dysphagia, the source would have to be investigated, but involvement due to the cerebrovascular compromise during the 30-minute CPR and residuals would have to be ruled out. The Board finds that in order to address the inadequacies noted by JMPR, remand is necessary. First, informed consent documents that the Veteran signed before the planned July 2014 hernia procedure should be associated with the claims file. In addition, a medical opinion addendum should be obtained to determine whether the takotsubo cardiomyopathy was a reasonably foreseeable event, and to determine the source of any post-event dysphagia and/or sleep problems. The matters are REMANDED for the following action: 1. Associate with the claims file all relevant informed consent documents from the Veteran's 2014 hiatal hernia surgery, to include any relevant informed consent documents scanned into VistA Imaging. 2. After completing the above, contact the VA examiner who provided the September 2020 opinion (or if they are no longer available, a suitable replacement) and ask the examiner to review the record and prepare an addendum to the medical opinion. Based on a review of the record, the examiner should address the following: a. Whether is at least likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's July 2014 takotsubo cardiomyopathy was a "reasonably foreseeable" event, which "a reasonable health care provider would have considered to be an ordinary risk of the treatment provided," to include consideration of disclosures in the informed consent. b. Whether it is at least likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's July 2014 anesthesia, cardiac arrest, and/or any treatment related to the cardiac arrest caused the Veteran additional disability with symptoms of dysphagia and/or changes in sleeping habits? The entire claims file, including a copy of this REMAND, must be reviewed. A thorough rationale should be provided for all opinions expressed. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. (Continued on the next page) If the VA examiner determines that further examination is necessary in order to render the requested medical opinions, the AOJ should schedule the Veteran for such an examination. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Nelson 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.