Citation Nr: 1328780 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 03-01 909 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to compensation under 38 U.S.C.A. § 1151 for hiatal hernias and paraesophageal hernias due to VA surgical procedures and/or treatment between December 1996 and June 1997. 2. Entitlement to compensation under 38 U.S.C.A. § 1151 for recurrent bronchitis/aspiration pneumonia due to VA surgical procedures and/or treatment between December 1996 and June 1997. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The record reveals that the Veteran served on active duty from December 1981 to November 1985, and that she had three years of additional active service prior to December 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded the Veteran's claims in February 2005 and June 2007. In November 2008, the Board denied the hiatal hernias and paraesophageal hernias claim and remanded the recurrent bronchitis/aspiration pneumonia claim. The Veteran appealed the denial of the hiatal hernias and paraesophageal hernias claim to the United States Court of Appeals for Veterans Claims (Court), and, in August 2009, the Veteran's representative and the Secretary of Veterans Appeals (Secretary) filed a Joint Motion for Partial Remand. This motion was granted in an August 2009 Court order, and both claims are again in appellate status before the Board. In July 2010, the Board remanded the Veteran's claims for further development. The Veteran's claims were again remanded by the Board in February 2012 and September 2012 to schedule the Veteran for a hearing before the Board. The Veteran testified at a Travel Board hearing in December 2012. FINDINGS OF FACT 1. There was no carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the Veteran's medical treatment from December 1996 to June 1997. 2. The Veteran developed additional disability of hiatal and paraesophageal hernias as a result of events not reasonably foreseeable associated with VA medical treatment from December 1996 to June 1997. 3. The Veteran developed additional disability of recurrent bronchitis and aspiration pneumonia as a result of events not reasonably foreseeable associated with VA medical treatment from December 1996 to June 1997. CONCLUSIONS OF LAW 1. The criteria for compensation under 38 U.S.C.A. § 1151 for hiatal and paraesophageal hernias due to VA surgical procedures performed and/or treatment received at the VA Medical Center from December 1996 to June 1997, have been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). 2. The criteria for compensation under 38 U.S.C.A. § 1151 for recurrent bronchitis and aspiration pneumonia due to VA surgical procedures performed and/or treatment received at the VA Medical Center from December 1996 to June 1997, have been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the favorable determinations contained herein, further development with regard to VA's duties to notify and assist as set forth by the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540 (1991). The Veteran reported that on December 17, 1996, she underwent surgery to treat her reflux disease. According to the Veteran, after the surgical procedure, she also underwent a swallowing study to make sure the surgery was successful and during the study, she informed the VA staff that she was getting sick and that she was going to vomit, but they continued with the study, thereby placing her in danger. The Veteran claims that as she warned, she had a severe retching and vomiting episode during the study. She claims further that following the swallowing study, she was taken to her room where she vomited again, causing her sutures to be torn open. The Veteran reported that she had her roommate rush her back to the emergency room of the VA hospital on December 22, 1996, less than 24 hours after her initial discharge, with symptoms of trouble swallowing and breathing and severe pain. The Veteran stated that when she arrived back at the VA hospital on the morning of December 22, 1996, she was advised that she "blew" her stitches and was rushed into surgery, where she had a chest tube put in place to pump out all the fluids that had collected in her chest since the swallow test on December 17th. The Veteran stated that she underwent additional surgery in March 1997 after X-rays showed that her stomach had flipped upside down in her chest. She stated that she was required to have a feeding tube surgically implanted in her chest, underneath her breasts, to correct the problem. The Veteran reported that she continued to experience severe pain in her chest area even with the feeding tube, and that in June 1997; she contracted bronchitis, which caused her to have coughing and eventually, trouble breathing. She claims that she underwent additional surgery later in June 1997, during which a third of her stomach was left up in her chest and consequently, she has problems every time she has chest X-rays done and she gets bronchitis at least four times a year. The Veteran asserts that she is entitled compensation under 38 U.S.C.A. § 1151 for recurrent bronchitis/aspiration pneumonia, as well as for hiatal hernias and paraesophageal hernias, as a result of VA surgical procedures and treatment between December 1996 and June 1997. At her November 2004 hearing, the Veteran's representative pointed out that an October 2001 VA expert medical opinion stated that the problems developed by the Veteran were unforeseeable consequences of the VA surgery. Legal Criteria: Compensation shall be awarded for a veteran's disability not the result of the veteran's willful misconduct that was caused by VA hospital care, medical or surgical treatment, or examination furnished the veteran and the proximate cause of the disability or death was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. 38 U.S.C.A. § 1151(a). 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 or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. 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. 38 C.F.R. § 3.361(d)(1). 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. 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. 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). History and Analysis: VA treatment records show that on December 17, 1996, the Veteran underwent a Belsey Mark IV surgical procedure for a history of gastroesophageal reflux disease failing medical management. Following her surgery on December 17th, the Veteran did well, she had no trouble swallowing, all of her lab work was within normal limits and her wound was clean and dry. It was later conceded by the VA that the Veteran had a severe retching episode during her swallowing study. Following her surgery, the Veteran's lungs remained clear and her swallowing study showed no leakage of the surgically repaired area of her esophagus. The Veteran was discharged on December 21, 1996. However, the Veteran presented to the emergency room on December 22, 1996, complaining of difficulty breathing. A chest X-ray conducted at that time showed air fluid level in her left chest and she was diagnosed with esophageal perforation. Consequently, she underwent emergent esophageal perforation repair and drainage of the left chest and perforation area. On postoperative day five, she underwent a swallow study, which was negative. Her condition improved and she was discharged home on December 30, 1996. The Veteran continued to do well as an outpatient until March 18, 1997, when she again presented at the emergency room with complaints of severe nausea, vomiting, shortness of breath, chest and abdominal pain. A chest X-ray revealed severe transthoracic gastric herniation (her stomach was completely elevated in her left chest). To treat her condition, on March 21, 1997, the Veteran had a laparoscopic gastropexy, gastric reduction laparoscopically and percutaneous endoscopically guided gastrostomy tube placement to fix her stomach within the abdomen. There was no free perforation or hole noted within the hollow viscus organ, and the Veteran had radiologic studies showing no perforation. Accordingly, she was discharged to home on March 24, 1997. She was followed by a VA doctor in the thoracic clinic and eventually the percutaneous endoscopically guided gastrostomy tube was removed without incident. The Veteran presented to the emergency room again on June 9, 1997 with return of her symptoms of severe left chest pain, abdominal pain, and with bloody drainage from her percutaneous endoscopic gastrostomy site. A chest X-ray revealed gastric herniation transdiaphragmatically. Upper gastrointestinal series revealed the fundus of the stomach to be dilated and herniation of a portion of the large bowel was noted, including the splenic flexure into the left hemithorax. Narrowing of the distal portion of the esophagus was noted secondary to compression from the dilated gastric fundus plus herniated large bowel. The Veteran was diagnosed with paraesophageal gastric colonic hernia, symptomatic and underwent reduction of a gastrocolonic paraesophageal hernia, primary diaphragmatic hernia repair and gastrostomy tube placement to fix the stomach once again into the abdomen. The Veteran had an unremarkable postoperative course and was discharged on June 18, 1997. During follow-up in the minor surgery clinic on June 24, 1997, her staples were removed and she was noted to be healing well from her fourth surgery. Over the next few months to years, the Veteran developed signs and symptoms of gastroesophageal reflux disease again and multiple bouts of what were determined to be chronic bronchitis/pneumonias. On July 2, 2000, the Veteran presented to the general surgery service where she underwent esophageal gastrojejunoscopy showing a large paraesophageal sliding hernia. Upper GI series showed a large hiatal hernia at the G junction with significant esophageal reflux. The rest of the stomach was normal and the duodenum was normal. In an October 2001 statement, a VA surgeon opined that the Veteran's problems with hiatal hernia, paraesophageal hernia and recurrent bronchitis/aspiration of pneumonia were a result of the Veteran's original complications of a perforated esophagus and later on with her paraesophageal hernias, and then her stomach and colon being herniated through the diaphragm into the left chest. He stated that he believed all the procedures the Veteran had were appropriate and that her management was reasonable. He went on to state that he believed the Veteran was a victim of unforeseen complications related to her surgery and also due to her anatomy and that he thinks she is prone to have problems with her gastroesophageal region which will probably be chronic and will continue to cause problems with recurrent bronchitis and aspiration pneumonia. He also indicated that he believed the Veteran's bouts of coughing are likely caused by her gastroesophageal reflux and hiatal hernia problem and that it will be a chronic problem for her. In a December 2003 statement, a private physician stated that during her last fundoplication surgery in 1997, the Veteran's stomach was separated into two parts, causing a lung to collapse in the process and causing the Veteran to suffer a pneumothorax, leaving her with a hiatal hernia and esophageal hernia. She also stated that the Veteran has frequent episodes of bronchitis since enduring the pulmonary problems during the 1997 surgery. During a March 2006 VA examination, the Veteran was diagnosed with recurrent bronchitis/aspiration pneumonia and symptoms of reflux. The examiner opined that the Veteran did have significant complications after her first hernia operation in 1996 which resulted in recurrent bronchitis and symptoms of reflux and those two disabilities at least as likely as not have resulted from her history of severe reflux that was not controlled by medications and therefore required surgical treatment. He also stated that he believed the two disabilities were not proximately due to VA's carelessness, negligence, or lack of proper skill. He stated further that the Veteran's disabilities were most likely due to events not reasonably foreseeable due to the fact that the events occurred very close in time. In July 2007, the Veteran's claims file was reviewed by a VA physician. The VA reviewer noted that the Veteran is on continuous medication for her medical conditions, gastroesophageal reflux disease (GERD) and bronchitis. The VA examiner stated that "the Veteran does not have any additional disability than what has already been mentioned, namely GERD and bronchitis." The Board finds that this statement is of no probative value as it does not provide any information as to whether the Veteran's developed additional disability as a result of the VA medical treatment and surgeries from December 1996 to June 1997. Even if the Veteran no longer had hiatal hernias or paraesophageal hernias in July 2007, as long as such were caused by the VA medical treatment and were present during the appeal period, the Veteran could be entitled to 1151 compensation benefits. In McClain v. Nicholson, 21 Vet. App. 319 (2007), the Court held that the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even though the disability resolves prior to VA's adjudication of the claim. In February 2009, a VA physician's assistant opined that the Veteran's bronchitis has not caused any additional disability. The Board finds that this opinion is of no probative value as it provides no information as to whether the Veteran developed a respiratory disability due to the VA medical treatment from December 1996 to June 1997. The Veteran was examined by a VA physician in October 2010. The examiner diagnosed gastroesophageal reflux disease and hiatal hernia. He noted that the Veteran had multiple surgeries to fix her problems and to treat the complications she had afterwards. He noted that the Veteran had complications and bad outcome, which were treated. He opined that he did not see clear evidence that there was carelessness or negligence with regard to the VA treatment. The VA examiner specifically stated that the he was not a gastrointestinal (GI) specialist and recommended that the Veteran be examined by a GI specialist or a surgeon. The October 2010 VA examiner also stated that the Veteran had chronic bronchitis with a history of asthma. He noted that the Veteran had a history of smoking and that she did not have a history of aspiration, at least in the recent past, and she is still getting those bronchitis episodes. He also noted that she reported some type of chemical inhalation she had on the job with airport security which could have something to do with it. He opined that he could not relate her current chronic bronchitis to the Veteran's surgeries (at VA in 1996 and 1997). The Board finds that the most probative evidence of record reveals that the Veteran developed additional disability, including hiatal hernias and paraesophageal hernias, as well as recurrent bronchitis/aspiration pneumonia, due to the VA surgeries in 1996 and 1997. As noted above, the Veteran's claims file was examined by a VA surgeon in October 2001, and he opined that the Veteran's problems with hiatal hernia, paraesophageal hernia and recurrent bronchitis/aspiration of pneumonia were a result of the Veteran's original complications of a perforated esophagus, and later on with her paraesophageal hernias, and then her stomach and colon being herniated through the diaphragm into the left chest. Additional disability due to VA surgerical treatment is also noted by the March 2006 VA examiner, who opined that the Veteran had significant complications after her first hernia operation in 1996 which resulted in recurrent bronchitis and symptoms of reflux. The Board recognizes that the October 2010 VA physician opined that the Veteran did not develop a respiratory disability due to the VA surgeries being considered. However, the Board does not find this opinion to be as probative as the other medical evidence of record. The Board notes that there are two VA opinions, dated in October 2001 and March 2006, opining that the Veteran did develop respiratory disability due to the VA surgeries. Furthermore, the October 2010 VA examiner stated at the beginning of his examination report that the Veteran's case is a complex one and may require a surgeon for evaluation. This would indicate that the October 2010 VA physician was not entirely confident about his opinion. The Board points out that the October 2001 opinion that supports the Veteran's claim was made by a surgeon. Although the Veteran asserts that her additional disability was a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the surgical treatment, there are no medical opinions which support the assertions, and there are several medical opinions that there was no fault on VA's part in furnishing the medical treatment. Consequently the Board finds that there was no fault on the part of the VA in furnishing the Veteran's medical treatment from December 1996 to June 1997. However, the Board does find that the additional disabilities resulting from the VA surgical treatment were events not reasonably foreseeable. As noted above, the October 2001 VA surgeon opined that the additional disabilities were unforeseen complications. Although the October 2001 VA surgeon did not use the words "not reasonably foreseeable," unforeseen complications can be interpreted to convey a similar meaning. Furthermore, the March 2006 VA examiner opined that Veteran's claimed disabilities, including gastrointestinal disability and recurrent bronchitis/aspiration of pneumonia, were most likely due to events not reasonably foreseeable. The Board recognizes that this is a complex case with confusing opinions; however, the Board finds that the evidence is at least in equipoise that the Veteran developed additional disabilities, including hiatal hernia, paraesophageal hernia and recurrent bronchitis/aspiration of pneumonia, due to VA surgical procedures and treatment between December 1996 and June 1997, and that such additional disabilities were due to events not reasonable foreseeable. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the Board concludes that the compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability, including hiatal hernia, paraesophageal hernia and recurrent bronchitis/aspiration of pneumonia due to VA surgical procedures and treatment between December 1996 and June 1997 is warranted. ORDER Compensation under 38 U.S.C.A. § 1151 for hiatal hernias and paraesophageal hernias due to VA surgical procedures and/or treatment between December 1996 and June 1997 is granted. Compensation under 38 U.S.C.A. § 1151 for recurrent bronchitis/aspiration pneumonia due to VA surgical procedures and/or treatment between December 1996 and June 1997 is granted. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs