Citation Nr: 1337982 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 11-00 600 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to compensation under 38 U.S.C. § 1151 for rectal damage to include colon perforation and colectomy. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Sorisio, Counsel INTRODUCTION The Veteran served on active duty from July 1963 to July 1965. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims file is now in the jurisdiction of the Houston, Texas RO. In June 2013, the Veteran appeared before the undersigned at a video conference hearing. A transcript of this hearing is of record. At the hearing, the Veteran submitted additional evidence with a waiver of RO initial consideration of such evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND The Veteran seeks compensation for rectal damage under the provisions of 38 U.S.C.A. § 1151. Specifically, the Veteran alleges he has additional disability, including mental and physical disability, as a result of VA negligence resulting from the insertion of a metal stent in December 2008 or its removal in February 2009. Before the Board can adjudicate this claim on the merits, additional development is required. A. VA Records The Veteran alleges that the consent he provided for the December 2008 procedure to insert a metal stent was not fully informed. In particular, he has indicated that he was not told of the risks associated with insertion of the stent, only of the benefits. The record contains a December 2008 VA treatment record reflecting that an informed consent was signed and witnessed prior to the procedure to insert a stent and that various risks, including potential complications were discussed. However, the record does not contain a copy of the signed informed consent document for this procedure. Since the Veteran has specifically raised the issue of informed consent, VA should attempt to secure the signed informed consent document as it may be pertinent to resolving his claim. The record also does not contain a copy of the signed informed consent document for the February 2009 procedure to remove the stent. Since the Veteran's allegations also relate to this procedure, VA should attempt to secure this informed consent document as well. B. VA Examination The Veteran also alleges that his rectal cancer could have been prevented or detected at an earlier time if VA had provided him with more frequent colonoscopies, particularly since colon polyps were found in November 2003. Additionally, he contends that VA did not evaluate problems evident with the stent placement or timely remove it, even though he complained about problems he was having on numerous occasions. In October 2010 and December 2012, VA examiners reviewed the Veteran's records and provided opinions on whether the Veteran has additional disability or disabilities from the December 2008 stent placement, February 2009 stent removal, or March 2009 hand-assisted laparoscopic abdominoperineal resection (HAL-APR). However, these opinions were insufficient as they did not fully respond to the pertinent questions at issue in this case. First, they did not address the question of whether VA failed to timely diagnose rectal cancer or to timely remove the stent, as alleged, and, if so, whether the Veteran suffered disability which probably would have been avoided if proper diagnosis and treatment had been rendered. See 38 C.F.R. § 3.361(c)(2). A May 2009 letter from the Acting Director of the Houston, Texas VA Medical Center (VAMC) states that routine protocol is to follow-up within five to ten years after finding colon polyps and that such routine follow-up was completed when the Veteran had a colonoscopy in October 2008 - five years after the November 2003 colonoscopy that revealed polyps. It was at that time that a cancerous rectal mass was discovered. Subsequent to that letter, in June 2009, the Veteran's spouse submitted a statement indicating that, based on her experience, her physician's protocol after a finding of polyps was to follow-up two to three years later. A further VA opinion is necessary to address these matters. Furthermore, the October 2010 examiner concluded that the Veteran had no additional disabilities, and stated that the fact that he has a colostomy is not a disability as this is the standard of care with patients who undergo a HAL-APR with end colostomy. This response does not fully respond to the question of whether the Veteran has an additional disability. The Veteran has essentially alleged that he has a permanent colostomy bag because the stent was not removed at an earlier time, not necessarily that it resulted from the HAL-APR procedure. He has also alleged that his additional disabilities include depression, sexual dysfunction, and an ulcerated tumor that was discovered upon February 2009 stent removal. In order to determine whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the care upon which the claim is based to the Veteran's condition after such care. 38 C.F.R. § 3.361. Thus, these alleged additional disabilities must be discussed by the reviewing clinician on remand. The December 2012 VA clinician concluded that the stent caused ulceration, but indicated that the ulceration was the expected side effect of the chemotherapy and radiation treatment for the rectal cancer and not due to negligence. The Veteran and his spouse have alleged that the Veteran started having problems immediately after the stent was placed, but that radiation treatment did not begin until four days after placement of the stent. The Veteran and his spouse are competent to provide evidence regarding symptoms and facts and circumstances that they can observe and describe. 38 C.F.R. § 3.159(a)(2). Their contentions raise questions about the conclusion reached by the December 2012 VA clinician. As further medical questions remain regarding the claim for benefits under § 1151, remand for another opinion is necessary. Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's signed consent forms for the December 2008 stent placement procedure and the February 2009 stent removal procedure, and ensure that all such pertinent records are associated with the claims file. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. After completing the development requested in item 1, request a records review and medical opinion from an appropriate specialist or specialists. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the reviewing clinician in conjunction with this request. The reviewing clinician must ensure that the medical literature submitted by the Veteran in June 2013 is reviewed and considered. If the reviewing clinician determines that a physical examination is necessary, then one must be scheduled. The reviewing clinician should specifically address the following questions: (A) (1) Is it at least as likely as not that VA failed to timely identify rectal cancer and/or failed to timely remove the stent? (2) If yes, then is it at least as likely as not that the Veteran experienced additional disability that probably would have been avoided if timely diagnosis and/or stent removal had been rendered? (B) Is it at least as likely as likely as not (50 percent probability or greater) that the Veteran incurred additional disability, to include disabilities related to depression, sexual dysfunction, an ulcerated tumor, or insertion of a permanent colostomy bag, as a result of VA medical care provided in conjunction with a December 2008 procedure to insert a stent and/or in conjunction with a February 2009 procedure to remove the stent? (C) If additional disability exists, is it at least as likely as not (50 percent or greater) that the proximate cause of such disability was carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA? In determining whether the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, please discuss if VA failed to exercise the degree of care that would be expected of a reasonable health care provider. (D) If additional disability exists, is it at least as likely as not (50 percent or greater) that such was due to an event not reasonably foreseeable? In determining whether an event is not reasonably foreseeable, the standard is what a "reasonable health care provider" would have considered to be an ordinary risk of treatment that would be disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32, which requires the primary health care provider to explain the reasonably foreseeable risks associated with the surgery or treatment being provided. A report of the opinion should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. If the reviewing clinician cannot provide any of the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. § 5109B (West Supp. 2013). _________________________________________________ VINCENT C. CHIAPPETTA Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).