Citation Nr: 1307445 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 12-34 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for claimed additional disability residual to a colon perforation, claimed to have been caused by medical treatment received at the Pittsburgh VA Medical Center (VAMC) on July 7, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from March 1957 to March 1959. This matter comes before the Board of Veterans' Appeals (Board) from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburg, Pennsylvania. The issue of reimbursement for unauthorized medical expenses has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Prior to a July 2009 colonoscopy performed by the VAMC, the Veteran did not have abdominal pain, bowel problems, and did not require an ileostomy. 2. On July 7, 2009, the Veteran consented to the risks of VA treatment associated with a colonoscopy, including colon perforation and infection. 3. The Veteran sustained a colon perforation during the July 7, 2009 medical treatment by VA of colonoscopy with polypectomy. 4. The colon perforation was treated on July 8, 2009 at the University of Pittsburg Medical Center (UPMC) by ileostomy, which was reversed in February 2011. 5. The Veteran's colon perforation was not caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in rendering treatment in July 2009. 6. There was no lack of informed consent for, or occurrence of an event not reasonably foreseeable during, VA treatment on July 7, 2009. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability residual to a colon perforation, claimed to have been caused by medical treatment received at the Pittsburgh VAMC on July 7, 2009, have not been met. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. In a timely letter dated February 2011, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for compensation under 38 U.S.C. § 1151, as well as what information and evidence must be submitted by the Veteran and what evidence VA would obtain. The notice included provisions for disability ratings and for the effective date of the claim. The Board further determines that a VA examination is not required to decide the § 1151 claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As explained below, the Veteran does not have a disability for which compensation may be paid, and no medical questions requiring resolution prior to adjudicating the claim are apparent following careful review of the matter. The Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes VA treatment records, UPMC treatment records and surgical report, and the Veteran's statements. The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. The Board will rely on all the evidence of record to determine the issue on appeal. The record is sufficiently developed for a determination at this time. Accordingly, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Laws and Regulations for Compensation Under 38 U.S.C.A. § 1151 Under the provisions of 38 U.S.C.A. § 1151, if VA hospitalization or medical or surgical treatment causes additional disability which is not the result of the veteran's own willful misconduct or failure to follow instructions, disability compensation may be awarded for a "qualifying additional disability" in the same manner as if the additional disability were service connected. See 38 C.F.R. §§ 3.361. If additional disability is present, two principal criteria apply in determining whether it is compensable within the ambit of 38 U.S.C.A. § 1151. First, the additional disability may qualify for compensation if the disability is not the result of the veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination provided under the laws administered by VA. Second, in order to constitute a qualifying additional disability, the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment, or examination, or (2) an event not reasonably foreseeable. These provisions of law apply to claims received by VA on or after October 1, 1997. 38 C.F.R. § 3.361(a). To determine whether an additional disability was caused by medical treatment, VA compares the veteran's condition immediately before the beginning of such treatment to his condition thereafter. To establish causation, the evidence must show that the treatment resulted in the veteran's additional disability. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. Disability that is due to the continuance or natural progress of the disease is not due to VA treatment unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(b), (c). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment proximately caused a veteran's additional disability, it must be shown that the medical treatment caused the additional disability, and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or that VA furnished the medical treatment without the veteran's informed consent. Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d). To determine whether there was informed consent, VA will consider whether the health care provider substantially complied with the requirements of 38 C.F.R. § 17.32 (2012). Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Id. Regulations further provide that compensation is not payable for the necessary consequences of VA treatment 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 or intended to result from the treatment provided. Consequences otherwise certain or intended to result from 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. 38 C.F.R. § 3.361. As noted above, the current version of 38 U.S.C.A. § 1151 requires that, for claims filed on or after October 1, 1997, the claimed additional disability must have been "caused by" VA hospital care, medical or surgical treatment, or examination, and further adds a "proximate cause" requirement that the additional disability be caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of additional disability be an event which was not reasonably foreseeable. See Pub. L. No. 104-204, §§ 4.22(a), 110 Stat. 2926 (Sept. 26, 1996); VAOPGCPREC 40-97. In this case, the Veteran filed his claim seeking benefits under 38 U.S.C.A. § 1151 in January 2010. Therefore, under the applicable statute and regulation, this claim must be adjudicated under the current version of section 1151. That is, even if there is an additional disability which resulted from VA care, the legal standard precludes compensation if the evidence does not establish that there was negligence or other fault on the part of VA, or an event not reasonably foreseeable. Compensation Under 38 U.S.C.A. § 1151 for Residuals of a Perforated Colon The Veteran in this case contends that his colon was perforated as a result of a colonoscopy performed at the Pittsburgh VAMC in July 2009. The Veteran contends that the VA hospital did not provide the UPMC surgeon with any detail of his colonoscopy procedure prior to his surgery to repair his perforated colon. His representative contends that the Veteran's aftercare, to include the surgical intervention (ileostomy), and the purported lack of notification of the colonoscopy results from VA to UPMC, caused the Veteran to seek medical care outside of VA, costing him "thousands of dollars." See representative's statement dated December 2012. Prior to the July 2009 colonoscopy performed at the VAMC, the Veteran did not require an ileostomy, had no abdominal pain or bowel movement problems, and according to his November 2011 statement, was a "well man." Additionally, VA treatment records dated July 2009 indicate that the Veteran's colonoscopy was being conducted as a "screening exam" due to the Veteran being over 50 years old. On July 7, 2009, the Veteran consented to the risks of VA treatment associated with a colonoscopy, including colon perforation and infection. VA treatment records reflect that the Veteran's informed consent was obtained at 11:45am on July 7, 2009. According to the July 2009 pre-procedure assessment, the Veteran was counseled as to the risks of the colonoscopy procedure, which included anesthetic reaction, bleeding, cardiopulmonary events, sudden death, perforation, infection, the need for blood with associated risks, and the possible need for antibiotics. The Veteran was also given the opportunity to ask questions and written educational materials were provided to him. On July 7, 2009, VA performed a colonoscopy with polypectomy. The Veteran sustained a colon perforation during this procedure. Once released from VA care on July 7, 2009, the Veteran began experiencing severe abdominal discomfort on his drive home. Once at home, the Veteran noticed blood in his stool, rapid breathing, and an elevated temperature. The Veteran reported that he called the VA hospital and was told that the doctor who had performed the procedure had left for the day and that he should call the national VA number. Upon doing so, the Veteran was instructed by VA personnel to go to the nearest emergency room. The Veteran's wife called to report low grade fever chills, rectal bleeding, right lower quadrant pain, and nausea. The Veteran was advised by VAMC to seek emergency care. The Veteran stated that, once arriving at the Latrobe Hospital emergency room, the doctors were unsuccessful in obtaining information regarding the colonoscopy procedure form the VA hospital. The Veteran reported the he was later transferred to UPMC because Latrobe Hospital did not have an on-call surgeon at that time. During the UPMC surgery, an ileostomy was completed and part of the colon was resected in order to treat the perforation of the colon. Following the UPMC surgery, VA treatment records dated July 14, 2009 to November 2010 do not reveal any disabilities caused by the July 9, 2009 colonoscopy other than the foreseeable risk of perforation and infection to which the Veteran consented. In a VA treatment record dated July 14, 2009, the doctor reported on the Veteran's surgery at UPMC and stated that the Veteran was "currently doing OK." In an August 2009 treatment note, it was noted that the Veteran had a gallbladder drain in order to assist the reversal of the ileostomy. The nurse practitioner further noted that the Veteran denied any nausea, vomiting, or diarrhea. The ileostomy was reversed (on an elective basis) on February 24, 2011. The doctor reported that the Veteran was released from UPMC after two weeks. The Veteran was readmitted on March 29, 2011 with fevers, confusion, and lactate. According to the UPMC April 2011 treatment note, the Veteran was treated with antibiotics and discharged on April 6, 2011. Based on the foregoing, the Board finds that the weight of the evidence of record demonstrates that the Veteran's colon perforation was not caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in rendering treatment in July 2009. Perforations and infection are a known risk associated with undergoing colonoscopy. The medical evidence of record does not suggest that the colonoscopy performed by VA or the Veteran's perforated colon and associated symptoms are due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA in providing treatment. As noted in VA treatment records dated July 2009, perforation is a known risk of colonoscopies. With regard to the Veteran's assertion that the VA hospital did not provide the UPMC surgeon with any detail of his colonoscopy procedure prior to his surgery to repair his perforated colon, this does not constitute an actual assertion of fault, as the Veteran at that time was not in VA medical care or treatment, but was in private medical treatment, so that any actions including obtaining a medical history were actions being undertaken by the private medical providers, not VA. Additionally, the Veteran was conscious and provided the relevant medical history to the UPMC surgeon of having undergone a colonoscopy at VA. From that history, the UPMC surgeon was able to successfully treat the perforation and resulting infection. Having medical staff or medical records custodians relate a patient's medical information to a private health care provider, after treatment has ended, and who is treating a veteran for a known, foreseeable risk to which he has consented, cannot constitute fault as it does not even constitute VA medical or surgical treatment or hospitalization or examination. See 38 U.S.C.A. § 1151(a)(1) (caused by hospital care, medical or surgical treatment, or examination by VA); 38 C.F.R. § 3.361(c) (claims must show causation by hospital care, medical or surgical treatment, or examination by VA, in addition to proximate causation). In addition, the Board finds that there was no absence of informed consent or the occurrence of an event not reasonably foreseeable for the Veteran's disability claimed herein under the provisions of 38 U.S.C.A. § 1151(a)(1)(B); 38 C.F.R. § 3.361(d)(1)(ii),(2). There is no contention that the July 2009 colonoscopy performed by VA was nonconsensual. Instead, the July 9, 2009 treatment note reported that the Veteran fully comprehended and freely consented to the procedure. Moreover, the July 2009 VA treatment note demonstrates that the risks of the colonoscopy that included perforation and infection were specifically revealed and consented to by the Veteran, and therefore, were not unforeseen. The consent form was signed by the Veteran on July 9, 2009 at 11:45am and indicated that he was informed of the possible risks of the colonoscopy, which included anesthetic reaction, bleeding, cardiopulmonary events, sudden death, perforation, infection, the need for blood with associated risks, and the possible need for antibiotics. For these reasons, the Board finds that a perforated colon was a reasonably foreseeable event. See 38 C.F.R. § 3.361(d)(2). The Board finds that any treatment received outside of VA, including the ileostomy and follow-up care at UPMC, is not within VA's supervisory control, and as such, not the fault of VA. See 38 C.F.R. § 3.361(e). In other words, the Veteran's ileostomy and UPMC treatment, which were conducted outside of VA and as a result of a foreseeable risk (perforated colon after colonoscopy), may not be found to be proximately due to any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA. The Board has also considered the Veteran and his representative's statements which contend that the Veteran's aftercare, to include the ileostomy and the purported lack of notification by VA to UPMC regarding the colonoscopy results, caused the Veteran to seek medical care outside of VA, costing him "thousands of dollars." See Veteran's statement dated November 2011 and representative's statement dated January 2013. The Veteran also provided an itemized list of all medical expenses resulting in treatment at UPMC and Latrobe Hospital. See Veteran's statement dated January 2011. The Board notes that financial reimbursement for medical expenses is not authorized under 38 U.S.C.A. § 1151; however, a veteran may file a claim for reimbursement for unauthorized medical expenses pursuant to 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-1003 (2012). Accordingly, the Board has referred the issue of reimbursement for unauthorized medical expenses to the AOJ for appropriate action as noted in the introduction section of this decision. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for compensation under 38 U.S.C.A. § 1151, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Compensation benefits under the provisions of 38 U.S.C.A. § 1151 for a perforated colon, claimed to have been caused by treatment received at the Pittsburgh VAMC in July 2009, is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs