Citation Nr: 1336581 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 03-21 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012) for a colon disability resulting from VA gastrointestinal treatment in late 2000. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. C. Mackenzie, Senior Counsel INTRODUCTION The Veteran served on active duty from August 1966 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. Following a December 2006 Travel Board hearing and remands in April 2007 and December 2009, the Board denied the Veteran's claim in June 2011. This denial was vacated pursuant to a December 2011 Joint Motion for Remand of the VA General Counsel and the Veteran's representative, which was granted in an order of the United States Court of Appeals for Veterans Claims (Court) in January 2012. The Board subsequently remanded this case in May 2012 and has since obtained a Veterans Health Administration (VHA) opinion addressing the issue at hand. FINDING OF FACT The Veteran did not incur additional colon disability from VA gastrointestinal treatment in late 2000 as a consequence of either carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA providers; or an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C.A. § 1151 for a colon disability resulting from VA gastrointestinal treatment in late 2000 have not been met. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.361 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and 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). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In this case, the Veteran was sent a series of 38 C.F.R. § 3.159(b) letters, beginning with a pre-adjudication June 2002 letter, that fully explained him what evidence or information was needed to substantiate his claim in light of the criteria for the benefit sought. Subsequent letters, from May and October of 2007, addressed the Dingess/Hartman requirements. The case has been readjudicated multiple times, most recently in a March 2013 Supplemental Statement of the Case. In regard to the aforementioned December 2006 Board hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. § 3.103(c)(2) requires that the RO official or Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. While the current claim was not addressed in substantial detail during this hearing (which concerned multiple issues no longer on appeal as well), as detailed above, the Board has already determined that the Veteran received adequate notification which apprised him of the elements necessary to substantiate this claim, and the statements submitted by and on his behalf have demonstrated that he has actual knowledge of the elements necessary to substantiate this claim. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of either hearing. Of particular note to the Board is the fact that no deficiencies from this hearing were cited in the December 2011 Joint Motion for Remand. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. § 3.103(c)(2) have been satisfied and that there is no prejudice to the Veteran from proceeding on this appeal. In short, there are no deficiencies of notification at this point in time that would require a remand or other action by the Board prior to final adjudication. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the Board has obtained relevant VA and private medical records and has afforded the Veteran multiple VA examinations in conjunction with his claim. These examinations fully addressed the current nature and extent of the Veteran's claimed disability but, as indicated below, did not provide the needed information as to the etiology of such disability. Accordingly, the Board requested a VHA opinion and obtained this opinion in August 2013. This opinion fully addressed the etiology of the Veteran's claimed disability in terms corresponding to 38 U.S.C.A. § 1151 and 38 C.F.R. § 3.361. For this reason, the Board is fully satisfied that all necessary evidentiary development has been accomplished. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. When a Veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, compensated work therapy, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. 38 U.S.C.A. § 1151 specifies two bases for entitlement. First, entitlement may be established on the basis of a showing of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA providers. But see generally Brown v. Gardner, 513 U.S. 115 (1994) (for claims filed prior to October 1, 1997, a claimant is not required to show fault or negligence in medical treatment). Second, entitlement may be established on a showing of an event not reasonably foreseeable. To establish causation, the evidence must show that VA's hospital care, medical or surgical treatment, or examination resulted in additional disability or death. Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1). Such VA treatment cannot cause the continuance or natural progress of a disease or injury for which such care was furnished 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(c)(2). In addition to a showing of additional disability or death, there must be evidence showing either that VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or that VA furnished treatment without the informed consent of the Veteran and his representative, in compliance with 38 C.F.R. § 17.32. Minor deviations from the 38 C.F.R. § 17.32 requirements that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express or implied as specified under 38 C.F.R. § 17.32(b), as in emergency situations. 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). As an initial matter, the Board acknowledges that the record does reflect that the Veteran developed additional colon disability as a result of VA medical treatment in 2000. VA hospital and treatment records from October and November of 2000 reflect that he underwent multiple colon procedures and was found to have developed a post-procedure perforation following endoscopic mucosal resection for a rectal carcinoid lesion in November 2000. The claims file does contain signed consent documentation, informing him of surgical risks, from November 2000. To further ascertain whether such perforation resulted in additional permanent disability or if any such disability, if present, resulted from carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault, the Board remanded the matter in April 2007 for a VA examination in connection with the claim. The Veteran was subsequently provided a VA examination in December 2008, in the report of which the examiner indicated that the claims file had been reviewed. After examining the Veteran, the examiner rendered a diagnosis of chronic fecal incontinence but stated that a medical opinion statement would be deferred. The examiner noted that the issue was discussed with a staff attorney with the Office of Regional Counsel and that it was beyond the scope of compensation and pension evaluations and the duties of the examiner to provide opinions concerning malpractice issues. Subsequently, in April 2009, an addendum opinion was requested and provided by another physician. This physician noted the findings of the previous examiner and found that the Veteran did not have any intestinal problems while he was in the service. He stated that the Veteran's rectal perforation and residual incontinence were not service-connected. Rather, the examiner stated that this resulted when the Veteran had surgery to remove the carcinoid tumor. As the April 2009 examiner failed to specifically address the section 1151 criteria, the Board remanded this case again in December 2009 for a new VA medical examination to correct this deficiency. The examiner who conducted the March 2010 examination noted that the claims file had been reviewed and acknowledged that the colonic perforation, which was about ten centimeters from the anal verge, was a complication of the flexible sigmoidoscopy in November 2000. However, the examiner stated that there was no evidence of any negligence or incompetence on the part of the VA Medical Center (VAMC) providers based on the record review. The examiner also opined that there was no evidence of negligence, lack of care, incompetence, or performance deficits in terms of promptly managing the perforation and following up with subsequent sigmoidoscopies. While the Board remanded this case in May 2012 (following the December 2011 Joint Motion for Remand) for an opinion as to the etiology of the Veteran's current colon disability in terms of 38 C.F.R. § 3.361, the report of a June 2012 Disability Benefits Questionnaire contains no such opinion. A subsequent opinion was obtained by the AMC in March 2013, and this opinion, based upon a claims file review, indicates that there was no medical evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care or medical or surgical treatment; or an event not reasonably foreseeable leading to additional colon disability. The Board notes, however, that this opinion was provided by a podiatrist, rather than a medical professional with demonstrable familiarity with gastrointestinal disabilities, and the opinion is accorded no more than minimal probative value. Given the inadequacies of the medical opinions cited above, the Board obtained a VHA opinion in August 2013. In this opinion, a VHA gastroenterologist confirmed reviewing the Veteran's claims file and noted that he had a prior history of colonic polyps when he underwent a routine colonoscopy in November 2000, revealing a rectal carcinoid as well. To remove this, the Veteran had a flexible sigmoidoscopy with endoscopic mucosal resection of the carcinoid lesion. This, however, was complicated by a perforation, and the Veteran was evaluated by surgery and admitted for conservative management with antibiotics. The perforation resolved, and the Veteran was discharged. Since that time, he had undergone several repeat colonoscopies for surveillance of colonic polyps, which had revealed several polyps over the years, a combination of hyperplasic and adenomatous, but no further carcinoid lesions. The Veteran had noted since the procedures in 2000 that he had intermittent fecal incontinence. The VHA gastroenterologist next noted that the Veteran's perforation was a well-known possible complication of gastrointestinal endoscopic procedures, especially when endoscopic mucosal resection was performed. The possibility of perforation was noted to be discussed as part of the consent process prior to performing such procedures. In this case, the perforation was appropriately recognized and managed, with resolution and discharge. With respect to the intermittent incontinence, the perforation (which resolved) occurred in the rectum at 10 centimeters, not in an area likely to affect the anorectal sphincter, which is located more distally. It is unclear how the healed perforation would lead to incontinence, even though the symptoms reportedly started after the perforation occurred. Based on the above findings, the VHA gastroenterologist ascertained that it was less likely than not that the Veteran incurred additional colon disability as a result of: 1) carelessness, negligence, lack of proper skill, error in judgment, or other fault on the part of VA and VA medical providers, or 2) an event not reasonably foreseeable. The rationale for this determination was that the care provided appeared to have been consistent with good medical practices, and the complication that occurred was a well-known possible occurrence, which was treated appropriately and resolved. In reviewing the above evidence, the Board fully acknowledges the multiple deficiencies of the VA opinions that were obtained prior to the August 2013 VHA opinion. That said, the Board also notes that none of these opinions contain any findings suggesting that the criteria for compensation under 38 U.S.C.A. § 1151 and 38 C.F.R. § 3.361 were met, and the Veteran also provided no private or other medical opinions supporting the conclusion that he incurred additional colon disability as a consequence of either negligence or other fault on the part of VA treatment providers, or an event not reasonably foreseeable. By contrast, the August 2013 VHA opinion clearly indicates the view that the aforementioned criteria were not met, and the Board accords this opinion considerable probative weight because it was based upon a claims file review and is supported by a detailed rationale. In short, the medical evidence of record weighs very heavily against the Veteran's claim. The Board has also considered the Veteran's own statements and hearing testimony. Notably, the Board does not question the Veteran's sincerity and concedes that he is competent to observe additionally colon symptomatology following his VA treatment. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Such additional disability, however, is insufficient in and of itself to predicate a grant in a section 1151 claim. The key question in this case is whether any additional disability was incurred as a consequence of either negligence or other fault on the part of VA treatment providers, or an event not reasonably foreseeable. These are determinations that are made not on mere contemporary observation but instead require a level of medical training, credentials, or other expertise that the Veteran has not been shown to possess. See 38 C.F.R. § 3.159(a)(2); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). For this reason, the Veteran's own statements are of no more than very minimal probative value. Overall, the preponderance of the evidence is against the claim of entitlement to compensation under 38 U.S.C.A. § 1151 for a colon disability resulting from VA gastrointestinal treatment in late 2000, and the claim must be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. (CONTINUED ON NEXT PAGE) That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 for a colon disability resulting from VA gastrointestinal treatment in late 2000 is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs