Citation Nr: 1005654 Decision Date: 02/16/10 Archive Date: 02/25/10 DOCKET NO. 07-24 968 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to benefits under the provisions of 38 U.S.C.A. § 1151 for additional disability claimed as the result of Department of Veterans Affairs (VA) medical treatment undertaken in March 2006. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran had active service in the United States Army from January 1942 to October 1945. This case came before the Board of Veterans' Appeals (Board) on appeal of a November 2006 rating decision issued by the of the Department of Veterans Affairs (VA) Tiger Team Special Processing Unit in Cleveland, Ohio. Thereafter, the case was handled by the Regional Office (RO) in St. Petersburg, Florida. In February 2009, the Board remanded the case for additional development. The case has now been returned to the Board for appellate review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran underwent an endoscopic retrograde cholangiopancreatography (ERCP) in March 2006 at a VA medical facility. 2. As a result of the ERCP, the Veteran sustained additional disability as a result of an unforeseeable event. CONCLUSION OF LAW Giving the benefit of the doubt to the Veteran, the criteria for establishing entitlement to benefits under 38 U.S.C.A. § 1151 for additional disability from a perforation of the duodenum due to VA medical treatment (ERCP) rendered in March 2006 have been met. 38 U.S.C.A. §§ 1151, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.361 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of 38 U.S.C.A. § 1151 allow that compensation under chapters 11 and 13 of 38 U.S.C. shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service connected. For the purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and - (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary [of the VA], either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was -- (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable; 38 U.S.C.A. § 1151. Under VA regulations, the question of whether proximate cause of a Veteran's additional disability or death was an event not reasonably foreseeable is to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable, but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. 38 C.F.R. § 3.361(d)(2). In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In March 2006, the Veteran underwent an ERCP procedure. The evidence of record includes a copy of the informed consent form signed by the Veteran for the procedure. That form lists bleeding, perforation, pancreatitis and cholangitis as risks associated with the ERCP. VA treatment records and a September 2006 VA medical opinion show that, during the procedure, the Veteran's duodenum was perforated, resulting in pancreatitis and peritonitis and a subsequent complicated hospital course, including an open cholecystectomy-pancreatic phelgmon debridement and jejunostomy feeding tube placement in May 2006. The September 2006 VA examiner stated that a perforation was a known potential complication of undergoing an ERCP procedure with documentation in the literature of 33 instances during 9314 procedures. However, the examiner also stated that the Veteran was not a patient who was at increased risk for an ERCP procedure-related complication. The examiner further noted that the Veteran was bedbound. Pursuant to the February 2009 Board remand, another VA medical opinion was obtained. A VA physician reviewed the claims file and the medical records, and concluded that there was no carelessness, negligence, accident, lack of proper skill or error of judgment on the part of any of the VA hospital personnel in connection with the March 2006 ERCP procedure. There is no contrary medical opinion of record. Significantly, however, the VA physician also concluded that, while perforation was a possible outcome associated with the ERCP procedure, the perforation of the Veteran's duodenum during the March 2006 procedure was not reasonably foreseeable. The physician stated, with citation to the literature, that the expected rate of ERCP-induced pancreatitis was generally between one and seven percent and that reported perforation rates for ERCP were between 0.3 percent and 0.6 percent. The reviewing VA physician concluded that the occurrence of perforation was not common and that it was therefore not foreseeable. As previously noted, in analyzing the distinction between foreseeability and nonforeseeability, an untoward event need not be completely unforeseeable or unimaginable, but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. 38 C.F.R. § 3.361(d)(2). The competent evidence of record indicates that, while perforation is known to occur during the performance of the ERCP procedure, such perforations only occur approximately once every 200 or so procedures. Thus, it could be said that such an occurrence is not "ordinary" in nature but quite rare. For these reasons, the Board finds that the evidence for and against the Veteran's claim is in relative equipoise on the question of whether the duodenal perforation inflicted in March 2006 was "an event not reasonably foreseeable" as contemplated by 38 U.S.C.A. § 1151. In view of the foregoing, and with the resolution of reasonable doubt in the Veteran's favor, the Board finds that the current residuals of the duodenal perforation with resultant pancreatitis were proximately caused by an event not reasonably foreseeable. Therefore, the Board finds that the criteria for entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability have been met. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Board is granting in full the benefit sought on appeal from the date of the claim. See Dingess v. Nicholson, 19 Vet. App. 473 (2006) and Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER Benefits under the provisions of 38 U.S.C.A. § 1151 for additional disability claimed as the result of VA medical treatment undertaken in March 2006 are granted. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs