Citation NR: 9724861 Decision Date: 07/18/97 Archive Date: 07/25/97 DOCKET NO. 95-24 197A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to benefits pursuant to the provisions of 38 U.S.C.A. § 1151 (West 1991 & Supp. 1996), for chronic radiation proctitis with colostomy, as a result of VA medical treatment. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. Wm. Thompson, Counsel INTRODUCTION The veteran had active military service from December 1936 to December 1939, and from August 1942 to September 1942. This appeal arises from a rating action in June 1995 denying compensation for radiation proctitis with colostomy under 38 U.S.C.A. § 1151. In April 1992, pursuant, in part, to a United States Court of Veterans Appeals opinion in Tobler v. Derwinski, 2 Vet.App. 812 (1991), the VA instituted a Department-wide stay pending further directive in those cases which were likely to fall within the precedent of Gardner v. Derwinski, 1 Vet.App. 584 (1991), aff’d sub non., Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff’d sub nom., Brown v. Gardner, 115 S. Ct. 552 (1994). In Gardner, the United States Court of Veterans Appeals held that 38 C.F.R. § 3.358(c)(3) (a portion of the regulation applicable to deciding claims under 38 U.S.C.A. § 1151) was invalid. In December 1994, the United States Supreme Court (Supreme Court) affirmed the lower court’s decision in Brown v. Gardner, ___U.S. ___, 115 S. Ct. 552 (1994). Specifically, the Supreme Court held that the VA is not authorized by 38 U.S.C.A. § 1151 to exclude from compensation the “contemplated or foreseeable results of non-negligent medical treatment,” as provided by 38 C.F.R. § 3.358(c)(3). On March 16, 1995, new regulatory criteria at 38 C.F.R. § 3.358(c)(3) were promulgated by the VA to conform with the Supreme Court’s decision and to implement the holding in Gardner. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO erred in not finding that the evidence of records supports compensation for the radiation proctitis and colostomy. He asserts that he was not told that he would need a colostomy as a result of his radiation treatment, and does not believe that the colostomy was an automatic or expected outcome of the therapy. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports a grant of compensation benefits, under the provisions of 38 U.S.C.A. § 1151, for residuals of radiation proctitis with colostomy, as a result of VA medical treatment. FINDINGS OF FACT 1. The veteran was found to have prostatic cancer in March 1990; he elected to undergo radiation treatment for the adenocarcinoma. 2. Interstitial and external radiation therapy was started in July 1990, completed in August 1990. 3. There is no consent form for the interstitial implant therapy; the consent for the external radiation mentions potential risks including bowel damage requiring surgical correction, however, it does not describe potential risks from bowel damage as extending to a permanent colostomy. 4. In September 1991 a colonoscopy with biopsy found radiation proctitis; a colostomy was performed. 5. The evidence of record does not show that the additional disability is the very nearly certain result of proper medical treatment, to which the veteran was informed and consented. CONCLUSION OF LAW The criteria for compensation benefits under 38 U.S.C.A. § 1151 for radiation proctitis with colostomy have been met. 38 U.S.C.A. § 1151, 5107(a) (West 1991 & Supp. 1996); 38 C.F.R. § 3.358 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is well-grounded and the VA has met its duty to assist by obtaining or attempting to obtain relevant evidence. The requirements mandated by 38 U.S.C.A. § 5107(a) have, in this instance, been fulfilled. Regulatory provisions pertinent to this claim include 38 C.F.R. § 3.800, determinations for disability or death from hospitalization, medical or surgical treatment, examinations or vocational rehabilitation training, which provides: (a) General. Where it is determined that there is additional disability resulting from a disease or injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination, compensation will be payable for such additional disability. (Authority: 38 U.S.C. 1151). (b) Additional disability. In determining that additional disability exists, the following considerations will govern: (1) The veteran's physical condition immediately prior to the disease or injury on which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury, each body part involved being considered separately. (i) As applied to examinations, the physical condition prior to the disease or injury will be the condition at time of beginning the physical examination as a result of which the disease or injury was sustained. (ii) As applied to medical or surgical treatment, the physical condition prior to the disease or injury will be the condition which the specific medical or surgical treatment was designed to relieve. (2) Compensation will not be payable under 38 U.S.C. 1151 for the continuance or natural progress of disease or injuries for which the training, or hospitalization, etc., was authorized. (c) Cause. In determining whether such additional disability resulted from a disease or an injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination, the following considerations will govern: (1) It will be necessary to show that the additional disability is actually the result of such disease or injury or an aggravation of an existing disease or injury and not merely coincidental therewith. (2) The mere fact that aggravation occurred will not suffice to make the additional disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as the result of training, hospitalization, medical or surgical treatment, or examination. (3) Compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran, or, in appropriate cases, the veteran's representative. "Necessary consequences" are those which are certain to result from, or were intended to result from, the examination or medical or surgical treatment administered. Consequences otherwise certain or intended to result from a treatment will not be considered uncertain or unintended solely because it had not been determined at the time consent was given whether that treatment would in fact be administered. (4) When the proximate cause of the injury suffered was the veteran's willful misconduct or failure to follow instructions, it will bar him (or her) from receipt of compensation hereunder except in the case of incompetent veterans. (5) Compensation for disability resulting from the pursuit of vocational rehabilitation is not payable unless there is established a direct (proximate) causal connection between the injury or aggravation of an existing injury and some essential activity or function which is within the scope of the vocational rehabilitation course, not necessarily limited to activities or functions specifically designated by the Department of Veterans Affairs in the individual case, since ordinarily it is not to be expected that each and every different function and act of a veteran pursuant to his or her course of training will be particularly specified in the outline of the course or training program. For example, a disability resulting from the use of an item of mechanical or other equipment is within the purview of the statute if training in its use is implicit within the prescribed program or course outlined or if its use is implicit in the performance of some task or operation the trainee must learn to perform, although such use may not be especially mentioned in the training program. In determining whether the element of direct or proximate causation is present, it remains necessary for a distinction to be made between an injury arising out of an act performed in pursuance of the course of training, that is, a required "learning activity", and one arising out of an activity which is incident to, related to, or coexistent with the pursuit of the program of training. For a case to fall within the statute there must have been sustained an injury which, but for the performance of a "learning activity" in the prescribed course of training, would not have been sustained. A meticulous examination into all the circumstances is required, including a consideration of the time and place of the incident producing the injury. (6) Nursing home care furnished under section 1720 of title 38, United States Code is not hospitalization within the meaning of this section. Such a nursing home is an independent contractor and, accordingly, its agents and employees are not to be deemed agents and employees of the Department of Veterans Affairs. If additional disability results from medical or surgical treatment or examination through negligence or other wrongful acts or omissions on the part of such a nursing home, its employees, or its agents, entitlement does not exist under this section unless there was an act or omission on the part of the Department of Veterans Affairs independently giving rise to such entitlement and such acts on the part of both proximately caused the additional disability. 38 C.F.R. § 3.358 (1996) Briefly, the evidence in file shows that in March 1990 the veteran was found to have problems with his prostate. A biopsy in June 1990 revealed adenocarcinoma of the prostate with a Gleason's scale of 6/10. A VA clinic record shows that in June 1990 the veteran desired radiation therapy, and interstitial therapy procedure was explained. This was to be followed by external beam therapy. The veteran was agreeable and a date for the therapy was to be arranged. The interstitial therapy was started in July 1990. Later in July, the veteran signed a disclosure and informed consent form for radiation therapy. Under the heading late reactions, which could occur as a result of the procedure, was listed "Bowel or rectal damage, scarring or narrowing of bowel causing obstruction, ulceration, bleeding sometimes requiring surgical correction." The radiation was completed in August 1990. A VA medical record shows that the veteran was hospitalized in August and September 1991 complaining of increased rectal pain. Colonoscopy with biopsy was performed and radiation proctitis was found. A diverting sigmoid colostomy with Hartmann's pouch procedure was performed. A VA memorandum, dated in December 1994, set forth a history of the veteran's prostate problems in 1990, noting that proctitis was a recognized complication of radiation therapy, that the colostomy was warranted because the radiation changes in his bowel were expected to be progressive, and become more difficult to manage over time, and that the veteran had received proper medical care. A VA Memorandum dated in June 1995, in response to a request for signed consent forms and attachments, noted that there were was SF 522 Consent Form in the record, that a consult sheet in June 1990 indicated that the interstitial implant procedure had been explained to the veteran, to be followed by external beam radiation. There was no documentation that benefits and risks were explained for the interstitial implant. There was an informed consent for the radiation therapy dated in July 1990. Analysis. The veteran avers that he did not have knowledge of the risk of developing radiation proctitis as a consequence of the radiation treatment, and he was not told that he would need a colostomy as a result of the treatment. There is no question that the veteran now has additional disability as a result of radiation therapy for his cancer of the prostate. In this regard, under VA regulations, compensation is not payable for the necessary consequences of medical or surgical treatment properly administered with the express or implied consent of the veteran. "Necessary consequences" are those which are certain to result from, or were intended to result from, the examination or medical or surgical treatment administered. The Court has clearly said that compensation is not payable for the intended consequences of a medical procedure to which a veteran has consented. It has also suggested that compensation may not be payable for the unintended results of care if they are among the risks which the veteran was advised before consenting to that care. Under the current legal interpretations of the governing law and regulations, it follows that compensation is payable if an injury resulting from VA treatment causes additional disability and the injury is not a risk of which the veteran was informed before consenting to undergo treatment. VAOPGCPREC 32-94. The Board notes that this is a very strict standard, and that the fact that the VA treatment was properly administered and completely free of negligence or fault is not a defense. In this case, the interstitial implant procedure was explained to the veteran but there is no record that benefits and risks for that procedure were explained in a manner that would permit the Board to conclude that the ultimate result here was a “necessary consequence,” i.e. a certain or intended result of the treatment. While the veteran did sign a consent form for the external radiation therapy, the references to bowel damage did not state that he could have chronic damage requiring a colostomy. The Board has also given consideration to the December 1994 memorandum explaining that proctitis is a recognized complication of radiation therapy. The Board, on the critical question of whether the colostomy was a risk of which the veteran was advised and consented, finds in the negative. Chronic progressive radiation proctitis resulting in a colostomy was not a risk of which the veteran was informed before consenting to undergo treatment. Thus, the claim must be granted. The Board again emphasizes that the element of fault or negligence on the part of VA providers is not an question in this type of claim for benefits, and nothing in this decision is intended to suggest that there was any fault in the VA treatment. ORDER Entitlement to VA benefits pursuant to the provisions of 38 U.S.C.A. § 1151, for chronic radiation proctitis with colostomy, is granted, subject to the monetary laws and regulations governing the payment of such benefits. RICHARD B. FRANK Member, Board of Veterans' Appeals 38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1996), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -