Citation Nr: 1316903 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 10-20 939 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to compensation under 38 U.S.C. § 1151 for residuals of perforated diverticulitis, with a history of inflammatory bowel disease. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to March 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran provided testimony at the RO before the undersigned Veterans Law Judge in October 2011. A transcript of the hearing has been associated with the claims file. The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA. FINDING OF FACT The Veteran has additional disability following VA treatment from April 2004 to December 2004 due to an error in judgment on the part of VA in the treatment provided. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for residuals of perforated diverticulitis, with a history of inflammatory bowel disease have been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria With respect to claims filed on or after October 1, 1997 (such as this one), 38 U.S.C.A. § 1151 provides in pertinent part that compensation shall be awarded for a qualifying additional disability in the same manner as if such additional disability was service connected. See VAOPGCPREC 40-97 (Dec. 31, 1997). For purposes of this section, a disability is a qualifying additional disability if the disability was not the result of the veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, and the proximate cause of the disability 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; 38 C.F.R. § 3.361. To determine whether additional disability exists, the veteran's condition immediately prior to the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based is compared to his or her condition after such care, treatment, examination, services, or program has been completed. Each body part or system involved is considered separately. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination 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. 38 C.F.R. § 3.361(c)(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or progress. 38 C.F.R. § 3.361(c)(2). Additional disability caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). The proximate cause of a disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability (see 38 C.F.R. § 3.361(c)); and that (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's-or, in appropriate cases, the veteran's representative's-informed consent. 38 C.F.R. § 3.361(d)(1). Finally, the determination of whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is to be based on what a reasonable health care provider would have foreseen. The event does not have to be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered an ordinary risk of the treatment provided. 38 C.F.R. § 3.361(d)(2). The regulation further provides that, in determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. §§ 17.32. 38 C.F.R. § 3.361(d)(2). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54 . Factual Background VA medical treatment records show that the Veteran presented for treatment as a new patient at the VA Medical Center (VAMC) in Salisbury, North Carolina, on April 6, 2004, after the sudden onset of severe left lower quadrant pain accompanied by intermittent diarrhea and fevers. Two weeks prior to his visit, he developed a rectal abscess and was treated by a private physician. An April 9, 2004, CT scan of the left upper quadrant of the abdomen revealed an inflammatory process of the descending and sigmoid colon suggestive of ulcerative colitis. Hemicolitis was also considered, and a mass lesion in the proximal sigmoid colon could not be excluded. There was also an impression of some ascites within the lower pelvic area probably related to the inflammatory process of the descending and sigmoid colon. An April 13, 2004, report shows that the Veteran was transferred to the VAMC in Durham, North Carolina for follow-up care after presenting with a history of hematochezia and abdominal pain for which he was prescribed Sulfasalazine, which he self-discontinued in 1993 due to his improved condition. Notably, he had a recurrence of abdominal pain, weight loss, and diarrhea in 2000 but did not seek further care for financial reasons. The assessment was a history of irritable bowel disease (IBD) since 1983 with what appeared to be acute colitis. His history of perianal/rectal abscesses indicated questionable Crohn's disease. He was prescribed antibiotics, high dose steroids, and Mesalamine. A colonoscopy was scheduled and additional treatment was recommended but the Veteran declined further care and returned home. In May 2004, the Veteran presented to the Salisbury VAMC for treatment of a palpable mass in the left lower quadrant and diarrhea. A May 14, 2004, CT scan of the abdomen and pelvis revealed a large mass lesion in the left lower quadrant which contained air consistent with abscess formation, a markedly thickened bowel compatible with inflammatory changes, and mass effect associated with inflammatory abscess. He was transferred to the Durham VAMC for further evaluation and treatment of abdominal pain where he was given IV steroids and antibiotics for presumed, severe, irritable bowel disease flare. A May 15, 2004, report reflects an assessment of inflammatory bowel disease with a clinical presentation of questionable ulcerative colitis. The Veteran had left-sided colitis and typical exacerbations, which resulted in gross GI blood loss and mild diarrhea more so than abdominal pain, and microcytic anemia. A May 17, 2004, flexible sigmoidoscopy revealed colon mucosa and chronic and slightly active colitis. On May 19, 2004, it was recommended that the Veteran undergo percutaneous drainage of the abscess. On May 21, 2004, the treating providers in radiology, internal medicine, and general surgery reviewed the Veteran's films and agreed to disagree about percutaneous drainage of the abscess. The radiologist essentially refused to place a drain in the Veteran. The Veteran was discharged from the Durham VAMC and provided discharge directions and an antibiotic. On May 25, 2004, the Veteran returned to the Salisbury VAMC for blood work and PPD placement. At that time, his treating physician told him to return to the Durham VAMC for IV antibiotics, steroids, and drain placement. The Veteran told the doctor that he inadvertently missed 4 doses of antibiotics since his discharge, but was otherwise doing well and that he wanted to wait until his GI appointment the following week to receive further treatment. The doctor warned him of a possible negative outcome and that his condition could worsen if he was not admitted that day. The Veteran indicated his understanding of the warnings but refused treatment. The doctor noted that he would call the Veteran daily to check his status and encourage him to be admitted. He also gave the Veteran his pager number. Between May 25 and May 30, 2004, the Veteran's treating physician encouraged the Veteran to return to the hospital for treatment and warned the Veteran of the risks of refusing treatment. The Veteran acknowledged his advice but did not return. He did not keep his scheduled appointment in the GI clinic on June 3, 2004. It was noted that he had a history of noncompliance, especially with medications and appointments. He was rescheduled for follow-up care. A July 1, 2004, report indicates that multiple notes were entered showing that the Veteran was urged to return to the VAMC for admission after an elevated white blood count was found. However, he refused to return for additional treatment. An August 4, 2004, emergency department note shows that the Veteran's abscess had fistulized to his skin and was draining stool with pus. It was recommended that he be admitted for IV antibiotics, steroids, a CT scan, consideration of Remicade and a GSU consult. The treating physician told the Veteran he would set up a direct admission for him, which the Veteran declined. The doctor explained the risks and benefits of refusing admission, including death and fistulization to other internal organs. The Veteran continued to decline admission. An October 2004 report shows that the Veteran failed to keep a scheduled GI clinic appointment. A December 21, 2004, CT scan of the abdomen revealed inflammatory changes of the distal descending colon and proximal sigmoid colon associated with a colocutaneous fistula. There was some improvement in the amount of fecal impaction that was proximal to the inflammatory mass and fistula when compared to the December 16, 2004, CT scan. The impression was inflammatory process in the anterior left lower bowel wall that appeared to extend into the peritoneal cavity adjacent to the junction of the descending and proximal sigmoid colon. The inflammatory mass appeared to involve the rectus muscle and the iliacus muscle. No abscess or free air was seen. There was an acute and chronic colitis pattern of the descending colon above that level which was moderately distended. The proximal colon and small bowel loops appeared normal. On December 22, 2004, the Veteran underwent an exploratory laparotomy with resection of the distal descending colon and proximal sigmoid colon, drainage of the left lower quadrant, repair of small bowel enterotomy, and transverse loop colostomy. The post-operative diagnosis was history of Crohn's disease and perforated diverticulosis with colocutaneous fistula. On April 18, 2005, he underwent a colostomy reversal and was diagnosed with status post colostomy for perforated diverticular disease. In January 2007, the Veteran had another operation for perforation of a portion of the remaining left colon. A completion colectomy with rectal stump Hartmann's pouch and end ileostomy was performed. Complications included a large ventral hernia. An April 2007 acute care telephone note shows that the Veteran stated that he planned to return to the emergency room because he thought he had a blockage. He was diagnosed with small-bowel obstruction, status post multiple surgeries and a history of Crohn's disease. A July 2007 report reflects an assessment of advanced Crohn's disease, musculoskeletal issues likely due to Crohn's disease, and urinary frequency. A September 2007 infectious disease clinic note shows that the Veteran returned for hospital follow-up care for peritonitis. It was noted that he was hospitalized with severe Crohn's disease associated with bowel perforation and secondary peritonitis. He had a prolonged and complicated hospital course, but had fully recovered. Unfortunately, he reported that about a week prior he had a bowel movement. Given that he had an ileostomy, it was highly concerning for evolution of an ileal-rectal pouch fistula. He was otherwise afebrile and asymptomatic. The assessment was Crohn's disease with a history of intestinal perforation and secondary bacterial peritonitis and ileal-rectal pouch fistula. In a July 2008 opinion, H. E. E., PhD, RN, National Surgical Quality Improvement Program Coordinator at the Durham VAMC, noted the Veteran's history of noncompliance with medication and regiments, poor attendance at follow-up appointments, and history of declining medical recommendations. She opined that there is no evidence in the available medical records to support the Veteran's claim that the care provided at the Durham VAMC negatively impacted his care. She did not opine as to whether the VA treatment resulted in additional disability or indicate whether any additional disability was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical care or treatment. She also did not indicate whether the proximate cause of any additional disability was not reasonably foreseeable. Because H. E. E. did not provide an adequate opinion, the Board requested an outside medical opinion. The Veteran's claims file was initially sent to a physician at LSU Hospital. However, the physician did not indicate review of the claims file and did not provide opinions with supporting rationale responsive to the Board's inquiries. The Veteran's claims file was then sent to Dr. D. W. M. at the University of Nebraska. After reviewing the medical evidence, which he summarized in detail, Dr. D. W. M. found that the care the Veteran received at the Durham VAMC in May 2004 fell below the standard of care for treatment of an intra-abdominal abscess. He said "source control by either a percutaneous or surgical approach was never obtained despite the fact that it was recommended. No note from radiology is available to give their reasons for declining to place the drain." Dr. D. W. M. said that the rest of the Veteran's course was predictable for untreated abscesses. He also expressly disagreed with H. E. E.'s opinion and opined that the care provided to the Veteran at the Durham VAMC in May 2004 negatively impacted the Veteran's care. He noted that the Veteran did not help his cause by failing to follow medical recommendations, attend follow-ups, and take medications as prescribed. Thus, Dr. D. W. M. found that the Veteran's care was impacted both by the care he received at the Durham VAMC as well as by his noncompliance. In response to questions posed by the Board, Dr. D. W. M. said there is a 50 percent or greater probability that the Veteran has an additional disability following VA treatment. Specifically, his "disability was that the abscess was never drained and the sequalae of not being drained was predictable and potentially preventable." He also indicated that there was a 50 percent or better probability that the additional disability "was a result of an error in judgment (not getting source control) as well as a delay in adequate therapy for an intra-abdominal abscess." Analysis Based on the foregoing, the Board finds that the Veteran has additional disability, residuals of perforated diverticulitis, that was not due to his own willful misconduct but due to substandard care provided at the Durham VAMC. Specifically, the additional disability was proximately caused by an error in judgment by VAMC providers in providing medical care to the Veteran in May 2004. Further, the error in judgment led to events, his additional disability, that were reasonably foreseeable. As such, the Board finds that entitlement to compensation under 38 U.S.C. § 1151 for residuals of perforated diverticulitis, with a history of inflammatory bowel disease is warranted. ORDER Compensation under 38 U.S.C. § 1151 for residuals of perforated diverticulitis, with a history of inflammatory bowel disease is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs