Citation Nr: 1417333 Decision Date: 04/17/14 Archive Date: 05/02/14 DOCKET NO. 09-22 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for malabsorption syndrome, claimed as a residual of gastric bypass surgery. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active duty from January to November 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In that decision, the RO denied a claim of entitlement to compensation under 38 U.S.C.A. § 1151 for malabsorption syndrome, claimed as a residual of gastric bypass surgery performed at a VA Medical Center (VAMC) in October 1989. In August 2011, the Veteran testified before the undersigned at a Board hearing. A copy of the transcript has been reviewed and is associated with the file. In January and November 2012, this claim was remanded for further development. FINDING OF FACT The Veteran has psychiatric/cognitive disabilities and peripheral neuropathy due to a vitamin B-12 deficiency, which was not a reasonably foreseeable event due to gastric bypass surgery performed at VA in October 1989. CONCLUSION OF LAW The criteria for disability compensation under the provisions of 38 U.S.C.A. § 1151 for psychiatric/cognitive disabilities and the peripheral neuropathy have been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.361 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA In April 2006, June 2009 and March 2010 letters, the agency of original jurisdiction (AOJ) satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(b) (2013). The AOJ notified the Veteran of information and evidence necessary to substantiate her claim for entitlement to compensation under 38 U.S.C.A. § 1151. She was notified of the information and evidence that VA would seek to provide and the information and evidence that she was expected to provide. In the June 2009 and March 2010 letters, she was informed of the process by which initial disability ratings and effective dates are assigned. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Since March 2010, the case has been re-adjudicated several times (see May 2011, November 2012, and May 2013 supplemental statements of the case). Any timing deficiency has been appropriately cured. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Also, in January 2014, the Veteran was given notice of a Veteran's Health Administration (VHA) opinion and allowed ample time for response. The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2013). VA has done everything reasonably possible to assist the Veteran with respect to her claim for benefits in accordance with 38 U`.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). Here, VA, service treatment, private and Social Security Administration (SSA) records have been associated with the claims file. All reasonably identified and available medical records have been secured. Although prior VA examiner opinions were incomplete, the Board finds the December 2013 VHA opinion, read in concert with the prior opinions, to be fully adequate. Read together, the opinions are wholly explanatory based on the facts and circumstances of this case. Pertinent VA records have been associated with file, including all available records from the October 1989 surgery. In effect, the Board finds that there has been substantial compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). Here, the transcript of the August 2011 Board hearing shows that the Veteran provided information regarding her claim and responded to questions aimed at determining whether further information was needed to substantiate the claim. (See generally, Board Transcript, pp 8, 10.) The Veteran has not raised complaints regarding the conduct of the hearing. Her representative, who was present at the hearing, has also not raised any complaints. The Board finds the duties to notify and to assist have been met. Entitlement under 38 U.S.C.A. § 1151 Under the provisions of 38 U.S.C.A. § 1151 (West 2002 & Supp. 2013), if VA hospitalization or medical or surgical treatment results in additional disability or death that is not the result of the veteran's own willful misconduct, compensation is awarded in the same manner as if the additional disability were service-connected. See also 38 C.F.R. § 3.361 (2013). While claims for 38 U.S.C.A. § 1151 benefits are not based upon actual service connection; there are similarities in their adjudication. See Anderson v. Principi, 18 Vet. App. 371, 376 (2004) (a claim under § 1151 is not a claim for service connection: the disability is not to be treated generally as if it were service-connected). In determining whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the medical and surgical treatment upon which the claim is based to the veteran's condition after such care or treatment has stopped. 38 C.F.R. § 3.361(b). VA considers each involved body part or system separately. Id. If additional disability is shown, actual causation is required. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the additional disability or death. 38 C.F.R. § 3.361(c) (2013). Merely showing that a veteran received care, treatment, or examination and that a veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1). Medical or surgical treatment cannot cause the continuance or natural progress of an 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 natural progress. 38 C.F.R. § 3.361(c)(2) (2013). Additional disability caused by a veteran's failure to follow properly given medical instructions is not caused by surgical treatment or examination. 38 C.F.R. § 3.361(c)(3) (2013). The proximate cause of the disability must have been carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the medical or surgical treatment. 38 U.S.C.A. § 1151(a)(1)(A). The proximate cause of 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 medical treatment proximately caused a veteran's additional disability; it first must be shown that the medical treatment caused the veteran's disability. 38 C.F.R. § 3.361(c)-(d) (2013). If causation is shown, then other elements must be established. See 38 C.F.R. § 3.361(d)(1)(i)-(ii) (2013). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical or surgical treatment proximately caused a veteran's additional disability, it must be shown that the medical or surgical treatment caused the veteran's additional disability 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 medical or surgical treatment without the veteran's informed consent. Id. The regulation states that in order to determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32, which covers informed consent. 38 C.F.R. § 3.361(d)(1)(ii). Minor deviations from the requirements of § 17.32 of this chapter that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Id. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in § 17.32(b) of this chapter, as in emergency situations. Id. Alternatively, the proximate cause of the disability may be an event not reasonably foreseeable. 38 U.S.C.A. § 1151(a)(1)(B); 38 C.F.R. § 3.361(d)(2). 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)(2). 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. Id. In essence, a claimed disability is a qualifying additional disability if such disability was not the result of the veteran's willful misconduct and (1) the disability was caused by medical or surgical treatment furnished the veteran under any law administered by the Secretary, and the proximate cause of the disability was due to either (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical or surgical treatment, or (B) an event not reasonably foreseeable. 38 U.S.C.A. § 1151. While the claim before the Board is not one of service connection, it finds that the general principles of considering lay evidence apply here. In Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009), the Federal Circuit reiterated that under 38 C.F.R. § 1154(a) the Board must do more than look for a medical nexus in adjudicating claims with lay evidence; it must also discuss competence and credibility. Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness's personal knowledge. See 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). In determining whether lay evidence is satisfactory, the Board may consider the demeanor of the witness, internal consistency, bias, facial plausibility, and consistency with other evidence submitted on behalf of the veteran. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). After a prolonged struggle trying to lose weight (see May 1982 Baptist Memorial discharge and VA records from 1988), the Veteran had surgery for obesity in October 1989 at a VAMC. An October 1, 1989 nurse note shows the Veteran stated she was "hoping surgery will make me thin." The same date, a record signed by a chief resident showed that she failed all conservative efforts to control her weight. The risks and benefits of procedure were explained. This included: suture line leakage, wound breakdown, chronic malabsorptive syndrome and death. The chief resident stated she understood and that she signed an operative consent. Dr. J.R. created a record dated October 2, 1989 and stated the patient was well-known to him from clinic visits and multiple telephone calls. She had a long history of morbid obesity and he personally discussed with her the rationale for and details of the planned procedure distal Roux-En-Y gastrojejunestomy. She understood and wished to proceed. The potential complications included, but were not limited to: bleeding, infection, injury to spleen, recurring splenectomy, anastomotic leak with abscess or fistula, bowel obstruction, ulcers, foul smelling diarrhea, needing to be on multiple medications, heart attack, pulmonary embolism, stroke and death. Records following the surgery noted that the Veteran was allowed to go home. She was prescribed vitamins, was on a post-gastrectomy diet and was taught how to care for herself after surgery (see October 8-9, 1989 records). The VA operative report shows the Veteran had been diagnosed with morbid obesity, which was noted to be more than 200 percent her ideal body weight. The operation was a distal roux-en-y gastrojejunostomy and tube gastrostomy. She had been cleared for surgery a few days prior. She tolerated the procedure well. She was monitored one day in the intensive care unit and then transferred to the floor. The operation was on October 2nd, and she started on clear liquids on the 7th. She tolerated these well, advanced to a regular diet and was discharged home on the 9th. Her discharge medications included Os Cal and multivitamins. Although follow up was planned in the discharge record, the next record in the file is a November 27, 1990 VA medical certificate from another state which showed she lost 110 pounds and noted her past weight reduction surgery. A January 1991 hospital summary showed a diagnosis of a ventral incisional hernia. Her medications included calcium carbonate 2000 mg every day and 2 multivitamins every day. The Veteran asserted in her original February 2001 claim that her gastric bypass surgery caused anemia, peripheral neuropathy, vitamin deficiency, and depression. She contended that her surgery caused a B-12 deficiency and claimed she was not treated for three years, which caused nonreversible peripheral neuropathy. In her March 2003 notice of disagreement, she stated that the effects of B-12 vitamin deficiency were not easily remedied; neuropathy affected her feet and face. She was treated for a number of vitamin deficiencies plus dysthymia, chronic fatigue syndrome, peripheral neuropathy and anemia. At the time of surgery, she was told that these effects should be easily remedied if they occurred, but that had not happened (see also October 2008 notice of disagreement). She felt VA misrepresented the side effects of treatment of the surgery. In her February 2006 claim to reopen entitlement to compensation under § 1151 for gastric bypass residuals, she stated that VA failed to provide proper follow up care subsequent to Roux-en-Y and Jejunoscopy gastric bypass (causing numerous residuals) and that VA failed to diagnose and treat B-12 deficiency. Her contention was not that the surgery was improperly performed, but that follow up care was inadequate. She also claimed that after her surgery she was enrolled in a medical study but was dismissed from it after being forced to drink too much liquid. She stated she was provided no follow up care and only limited information about the increased nutritional needs that she now had (see also June 2009 appeal). She stated she was fine for nine years, then started to suffer fatigue and was diagnosed with malabsorption syndrome. She claimed that proper follow up care and information about this bypass at the time of the surgery or immediately thereafter could have prevented her residuals. At the August 2011 Board hearing, the Veteran described her symptoms, to include cognitive or psychiatric problems (Transcript, pp 3, 13, 15-16). (See also the Veteran's April 2009 statement.) The Veteran stated she was not an LPN at the time of the surgery and the doctor did not counsel her beyond telling her to take vitamins and calcium (which she did). (Transcript, p 4.) After relating the same account of the surgery she wrote about in her February 2006 claim (Transcript, pp 4-5), she agreed that her theory was that the abrupt manner in which the study ended caused her care to end prematurely. (Transcript, p 9.) She stated that it was not until 1997 or 2000 that her B-12 deficiency became an issue. (Transcript, p 11.) Her problems abated a bit with treatment. (Transcript, p 14.) The Board finds that the Veteran is competent to report what happened around the time of the surgery under 38 C.F.R. § 3.159(a)(2). However, several documents show that she signed a consent form for surgery, the doctors carefully explained the possible outcomes of surgery, the procedure went well, she tolerated liquids after the surgery, and she was discharged with medications (such as Os-Cal and multivitamins). While the records do not show that she returned for follow up, a November 1990 VA medical certificate shows the surgery was successful and the January 1991 hospital summary noted her vitamin regimen. Further, an April 1991 VA initial nutrition assessment showed the Veteran requested information on calcium supplements and noted her history of a gastric shunt for an obesity diagnosis (her current weight was 225). A follow up note showed information on calcium and vitamin issues were discussed. To the extent the records conflict with the Veteran's history, the records are assigned more weight because they were created close in time to the event of the surgery, versus twenty years later when the Veteran filed her claim and also because one would expect either the October 1989 records to show the immediate problems the Veteran claimed she had. See Buczynski v. Shinseki, 24 Vet. App. 221, 225-26 (2011) (Contemporaneous evidence may tend to contradict a lay statement, if there is a record that would normally have recorded a fact had it been observed. Regarding symptoms, the Veteran is competent to report them and the evidence corroborates her symptoms. The record shows that the Veteran has B-12 deficiency; this was noted as a new onset in a May 2001 VA record. Other records also showed: iron deficiency (March 1996 record from Dr. B.S.); mild mixed axonal and demyelinating peripheral neuropathy (April 2000 EMG/NCV study); chronic fatigue, depression and dysthymia (November 2000 Dr. W.R. opinion); and anemia (March 2001 VA opinion). Here, the Veteran also has some medical training as a licensed practical nurse (LPN), in addition to her competent lay statements regarding her health history. While she is competent to report her symptoms since the surgery, she is not competent to determine the outcome here, even with LPN training, because this case involves several complex medical questions. See, for example, an August 1998 VA gastroenterology record noting that determining mineral deficiencies is fraught with difficulty. Medical experts agree that malabsorption syndrome was a known risk and the intended result of this surgery (see October 1989 Chief Resident and Dr. J.R. records as well as May 2012 and April 2013 VA opinions). However, the May 2012 VA opinion noted that the B-12 deficiency was a rare outcome. As a result, the Board sought clarification as to what symptoms or manifestations her currently diagnosed Vitamin B-12 deficiency (B-12) caused by requesting a VHA opinion, as well as a longitudinal review of the file. In a December 2013 VHA response, Dr. R.F. provided a summary of the Veteran's complex medical history and confirmed that the cause of the B-12 deficiency was the malabsorption component of the surgery and stated that additional B-12 supplements could improve this situation. He noted that many of the Veteran's neurological symptoms could be related to the B-12 deficiency. Additionally, Dr. R.F. saw that the Veteran had depression and other psychiatric and cognitive changes which can also be attributed to B-12 deficiency (the studies cited show that this was rare, but provided some support). He explained that the neurological and psychiatric symptoms overlapped with malabsorption syndrome but were predominately caused by the B-12 deficiency. As to whether the B-12 symptoms worsened the malabsorption syndrome, Dr. R.F. stated that the symptoms could be reversed with B-12 repletion but not if they were left inadequately treated for too long. In closing, Dr. R.F. acknowledged the complexity of the case and essentially stated this was the best opinion he could offer. After reviewing several opinions given in this case, the Board finds Dr. R.F.'s to be highly probative because all evidence was available, an accurate summary of facts was provided, medical literature was cited and the medical science was explained within the context of the case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Also probative is the March 2009 VA opinion, of Dr. M.H., chief of hematology and oncology, who treated the Veteran since 2003 for treatment for iron deficiency anemia resulting from gastric bypass surgery performed in 1989. He stated that at the time of her surgery, she was discharged home with a multivitamin and Os Cal supplement. It was not known at that time that this surgery would result in a Vitamin B-12 or iron deficiency. As a result of the B-12 deficiency she suffered peripheral neuropathy of the bilateral hands and feet as well as her face. She also had cognitive disabilities, memory deficits and depression. In 1996, she was treated for her symptoms but it was not until 2001 that she was prescribed B-12 supplements that halted the progression of neuropathy and cognitive limitations but did not reverse symptoms. If she had been prescribed vitamin B-12 replacement (routine maintenance after weight loss surgery) during the time she was treated with vitamin and iron deficiency (1991 to 2001) she would not have severe neuropathy. The May 2012 VA opinion writer reviewed the file in detail and gave an extensive history of weight-loss surgical procedures, explaining that the type of procedure received by the Veteran in 1989 was a malabsorptive procedure called biliopancreatic diversion. At the time of the Veteran's surgery, this procedure had been regularly performed for ten years; it was not experimental. The examiner explained that the loss of nutrients after the procedure was its principal side effect. The inability to absorb fats also interfered with the absorption of fat-soluble vitamins A, D, E and K. It was noted that bypassing the duodenum could cause iron deficiency with resulting anemia so it was vital that patients take life-long vitamin, calcium and iron supplements. The examiner explained that the surgery was known as a malabsorptive procedure, so her resulting malabsorption was a known effect of the procedure, not a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA. The May 2012 opinion did state that B-12 deficiency was not a common and expected result of the surgery. The surgical residuals were the expected malabsorption from the procedure; including deficiencies of fat soluble vitamins, anemia and peripheral neuropathy. Supplements usually prevented anemia in most patients, but is usually an issue only in those patients who have chronic physiologic bleeding (like heavy menses). The Veteran's records note she had heavy flow for at least two days of her period. Peripheral neuropathy was supposed to disappear with treatment. Another medical article stated that an iron deficiency may occur with the Veteran's surgery and must be prevented with adequate supplements during vigorous follow up. The May 2012 opinion did not acknowledge the Veteran's peripheral neuropathy, although this was demonstrated by many records throughout the file. The examiner concluded that the Veteran's malabsorption was a known and expected outcome of the malabsorptive surgical procedure. The examiner concluded after extensive review of the available records that there was no evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of VA, or an event not reasonably foreseeable. This opinion did not change after further VA records became available (see April 2013 addendum opinion). Other opinions were considered, but were less comprehensive than the 2012-2013 VA opinions and December 2013 VHA opinion. A March 2002 VA opinion essentially stated the Veteran had no unexpected symptoms as a result of the surgery (commonly performed at the time) and that any current symptoms could be easily managed with medications. Dr. D.M. disagreed with this assessment in June 2007, stating that the bariatric surgery from 1989 was "significantly complicated" by vitamin deficiencies and malabsorption. A VA nurse practitioner also wrote a letter in support of the claim in June 2007 stating it was as likely as not that the Veteran's declining physical and mental health (to include anemia, peripheral neuropathy and clinical depression) could be attributed to the chronic metabolic disorders related to the gastric bypass surgery in 1989. In August 2007, Dr. M.H., stated that her complications included chronic and severe vitamin and iron deficiency which required iron infusions, long drives to see the hematologist, and visits to primary care at least three times per year. With the exception of the March 2002 VA opinion, the Board finds these other opinions are not in great conflict with one another. They supplement the conclusion that some of the Veteran's residuals (later determined to be the result of the B-12 deficiency) were outside the norm of what was expected for the surgery results. The Board finds that the major disabilities the Veteran now has as a result of the B-12 deficiency are the psychiatric/cognitive disabilities and the peripheral neuropathy; this is an additional disability under 38 C.F.R. § 3.361(b). The evidence shows that these disabilities are the result of the October 1989 surgery. See 38 C.F.R. § 3.361(c). As the December 2013 VHA and May 2012 opinions explained, psychiatric/cognitive disabilities and peripheral neuropathy are the likely result of an unexpected B-12 deficiency. In other words, the proximate cause of the disability was an event not reasonably foreseeable. 38 U.S.C.A. § 1151(a)(1)(B); 38 C.F.R. § 3.361(d)(2). According to the May 2012 VA opinion, this additional disability was an event not reasonably foreseen by a reasonable health care provider. Regarding malabsorption syndrome, to include anemia and resulting fatigue, this was a known and expected outcome of the surgery that was undertaken to alleviate obesity; as a result it is not an additional disability under 38 C.F.R. § 3.361(b). The records from the time of the surgery support that the Veteran would have malabsorption syndrome and would need medications; the Veteran acknowledged her need for medications in her June 2009 appeal. The Board does not find additional disability beyond the psychiatric/cognitive disabilities and the peripheral neuropathy caused by unexpected B-12 deficiency. Because the Board finds no other disability, further analysis as to other residuals beyond the ones granted in this decision do not apply. 38 C.F.R. § 3.361(b). While there is some evidence that intimates that the additional disability was caused by the veteran's failure to follow properly given medical instructions (which is not causation under 38 C.F.R. § 3.361(c)(3)), the Board finds this evidence to be inconclusive. Any doubt is resolved for the Veteran and compensation under 38 U.S.C.A. § 1151 for the gastric bypass surgery residuals psychiatric/cognitive disabilities and the peripheral neuropathy due to vitamin B-12 deficiency is granted. ORDER Compensation under 38 U.S.C.A. § 1151 for the gastric bypass surgery residuals of psychiatric/cognitive disabilities and peripheral neuropathy due to vitamin B-12 deficiency is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs