Citation Nr: 1126908 Decision Date: 07/19/11 Archive Date: 07/29/11 DOCKET NO. 07-36 833 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability, including a permanent colostomy, as a result of treatment at a VA facility. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from July 1943 to August 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In April 2009, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development, and it now returns to the Board for appellate review. In March 2009, the Veteran testified at a personal hearing before the undersigned, sitting at the RO. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, the medical evidence of record demonstrates the presence of additional disability in the form of a permanent colostomy, secondary to rectal surgery performed at a VA facility. 2. The permanent colostomy is not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part. 3. The permanent colostomy was the result of a reasonably foreseeable event. CONCLUSION OF LAW Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability, including a permanent colostomy, as a result of treatment at a VA facility is not established. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Stegall Considerations The Board observes that this case was remanded by the Board in April 2009. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). The purpose of the remand was to achieve further development of the claim, namely to obtain the consent form associated with the November 2005 surgery and to schedule a VA examination. A review of the post- remand record shows that the consent form was obtained and that VA examinations were conducted in June 2009 and November 2010. As discussed below, the Board finds the VA opinions do not provide all necessary findings to allow for adjudication of the claims; however, the deficiencies in the opinions were then remedied by an opinion received from a specialist within the Veterans Health Administration (VHA). Therefore, the Board determines that the Board may now proceed with adjudication of the claim without additional remand to the RO/AMC. II. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claims, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353-23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. VCAA notice must be provided before the initial unfavorable AOJ decision on the claims for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with a VCAA notification letter in February 2006, prior to the initial unfavorable AOJ decision issued in March 2007. The Board observes that the pre-adjudicatory VCAA notice informed the Veteran of the evidence necessary to establish entitlement to benefits under 38 U.S.C.A. § 1151, of how VA would assist in developing the claim, and his and VA's obligations in providing such evidence for consideration. A March 2006 letter then provided information as to the substantiation of disability ratings and effective dates. Therefore, the Board determines that the Veteran was provided with all necessary VCAA notice prior to the initial adjudication of the claim. Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. See Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and obtaining a VA opinion. The Veteran's service treatment records, VA treatment records, a July 2006 VA opinion, and the reports of June 2009 and November 2010 VA examinations and opinions were reviewed by both the AOJ and the Board in connection with adjudication of the claim. Additionally, an opinion from a specialist with the VHA was supplied to the Board. The Veteran has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claim. With regard to the VA opinions, the Board notes that once VA undertakes to obtain a VA opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As is evident by the discussion below, the Board found that the VA opinions of record in the case did not provide all the necessary information to allow for an equitable decision on the claim. Accordingly, the Board requested an opinion from a VHA specialist. The VHA specialist reviewed the claims file and noted relevant documents in post-service treatment evidence prior to offering negative opinions in response to the questions posed. The Board observes that the opinions provided were supported by a rationale based on all the available evidence. There is nothing to suggest that the specialist's opinion is not sufficiently based on the facts of the case or that he reached an arbitrary conclusion. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159 (c)(4). In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and additional efforts to assist or notify the appellant in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. III. Analysis The Veteran claims entitlement to benefits under 38 U.S.C.A. § 1151 for additional disability associated with surgery to remove rectal cancer. Specifically, he contends that his permanent colostomy constitutes additional disability that resulted from lack of care and negligence on the part of VA in performing two surgeries as treatment for his rectal cancer. Section 1151 of Title 38 of the United States Code was modified by section 422(a) of Public Law 104-204, 110 Stat. 2926 (1996), for all claims filed on or after October 1, 1997, to require not only that the VA treatment in question resulted in additional disability, but also that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing treatment, or that the proximate cause of the additional disability was an event that was not reasonably foreseeable. VAOPGCPREC 40-97, 63 Fed. Reg. 31,263 (1998). With regard to the former element, it must be shown that VA's care, treatment, or examination caused the Veteran's additional disability and VA failed to exercise the degree of care that would be expected of a reasonable health care provider or that VA furnished such care, treatment, or examination without the Veteran's informed consent. 38 C.F.R. § 3.361(c), (d) (2010). To determine whether the Veteran has additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the Veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(b) (2010). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In July 2005, a colonoscopy was performed and biopsy revealed the presence of a malignancy in the rectum. Surgery was performed in November 2005. The resection of the tumor was incomplete, and a second surgery was performed in February 2006. As a result of these surgeries, the Veteran has a permanent colostomy, and he also complains of constant rectal pain. The record shows that multiple oncologists, radiologists, and surgeons have had a role in the Veteran's care. Due to radiation therapy for prostate cancer ten years prior, radiation treatment for the rectal cancer was not recommended. Therefore, the Veteran's oncologist apparently determined that an abdominoperoneal resection (APR) was the best surgical procedure for removal of the tumor in the Veteran's case. However, the surgeons instead performed a transanal resection. The record reflects that the Veteran suffered a drop in blood pressure during this surgery and so the resection was not completed. As a result, a second surgery was performed just over two months later. The procedure was an APR. The remainder of the tumor was excised at that time, and the Veteran has not required additional surgery or treatment for the cancer. The Veteran contends that the permanency of the colostomy is the result of the need for two surgeries to fully address the tumor and that the surgeons in the first instance were negligent in the decision to perform a transanal resection rather than an APR. He has also argued that the surgeons involved lacked the proper skill to perform the surgery. The Board notes that, in addition to the recommendation of the Veteran's oncologist, a December 2005 consultation report from Dr. BH implies that the Veteran's ultrasound prior to the first surgery indicated that an APR was the best course in the Veteran's case. Additionally, three VA opinions have been obtained. A July 2006 opinion merely reflects a finding that all aspects of the surgical treatment and follow-up related to the Veteran's November 2005 procedure were explained to the Veteran. The opinion does not mention the February 2006 procedure or discuss any other factors relevant to a claim under 38 U.S.C.A. § 1151. Accordingly, the Board affords the statement no probative weight. The next opinion, dated in July 2009 with August 2010 addendum, initially stated that the Veteran had suffered additional disability that was not reasonably foreseeable. However, the examiner did not define the additional disability or comment on the question of fault on VA's part in creating such disability. The addendum indicated that the Veteran's blood pressure drop during the first surgery was a hostile depression, and necessitated that the surgery be stopped. The examiner then found that the depression was not a result of carelessness, lack of proper skill, negligence, or error in judgment during the surgery. The third opinion, dated in November 2010, states that there does not appear to be any additional disability resulting from the drop in blood pressure during the first surgery. However, the examiner also indicated that she is not a surgeon, and therefore, could not provide an opinion as to the best procedure for the Veteran. As demonstrated, none of these opinions commented specifically on the Veteran's permanent colostomy as a possible additional disability associated with the surgeries. Therefore, the Board requested a specialist opinion on the question of whether there was additional disability associated with the Veteran's surgeries and, if so, whether the disability was due to fault or negligence on VA's part. This opinion was received in April 2011. The specialist indicated that it was less likely as not that the Veteran suffered an additional disability from the rectal surgery, including the colostomy. He also opined that it was less likely as not that any such disability would not have been a reasonably foreseeable event resulting from such care by VA. Finally, he opined that it was less likely as not that VA had failed to exercise the degree of care that would be expected of a reasonable health care provider, thereby exhibiting carelessness, negligence, lack of proper skill, or error in judgment or similar fault. In forming these opinions, the specialist reviewed the claims file and documented in detail the Veteran's relevant treatment history. He further noted that the Veteran was informed of the alternatives for treatment, including the colostomy. With respect to the need to discontinue the first surgery, the specialist stated that the Veteran's recovery time from the first procedure was not unexpected given the nature of the Veteran's previous radiation treatment for prostate cancer. The specialist also noted that, given the Veteran's prior radiation treatment for prostate cancer, he was not an ideal candidate for a colonic or ileal-anal pull through, and he opined that there was no negligence in the treatment of the Veteran, which had been consistent with current practice. The Board notes that the record reflects that the Veteran provided written informed consent for his surgical procedures. Additionally, a review of the November 2005 consent form reflects that a drop in blood pressure was a recognized complication of any such procedure. Therefore, to the extent the Veteran's second surgery and any subsequent disability can be attributed to the drop in blood pressure, the hypotension was a reasonably foreseeable event. Nevertheless, the Board does find that the Veteran has an additional disability in the form of a permanent colostomy. In this regard, the Board observes that the April 2011 VHA specialist stated that the Veteran did not have additional disability as a result of the permanent colostomy, whereas the June 2009/August 2009 opinions indicated that the Veteran did have additional disability, but did not define the disability. Nevertheless, the record clearly documents that the Veteran's surgeries resulted in the permanent closure of his anus, which in turn required the permanent colostomy. Therefore, the Board affords all reasonable doubt to the Veteran and concludes that he has an additional disability as a result of his VA treatment in the form of a permanent colostomy. Nevertheless, the Board does not find that this additional disability was the result of negligence or lack of proper care on VA's part or the result of an event not reasonably foreseeable. In this regard, the Board observes that the purpose of the surgeries performed was the resection of the anus and removal of the cancerous tissue. As reflected by the record, such surgery would necessarily result in a permanent colostomy, regardless of the surgical procedure used. Thus, the change in surgical procedure between the November 2005 and February 2006 procedures does not indicate that the outcome for the Veteran would have been different if the APR had been performed initially. The Veteran has not provided competent evidence that contradicts the negative opinions of record. The Veteran's statements alone may serve to describe symptoms in support of a diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, he is not competent to determine the appropriate specialized course of treatment for his anal cancer or to assess the quality of care he received within the standards of the health care profession. Thus, although the Veteran has additional disability as a result of VA treatment, the disability did not result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. Nor was the treatment performed with lack of informed consent or the disability an unforeseeable outcome of the care he received. Accordingly, the Board determines that a preponderance of the competent evidence is against the Veteran's claim, and concludes that the requirements for a successful claim for benefits pursuant to 38 U.S.C.A. § 1151 have not been met. ORDER Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability, including a permanent colostomy, as a result of treatment at a VA facility is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs