Citation Nr: 1502740 Decision Date: 01/20/15 Archive Date: 01/27/15 DOCKET NO. 05-30 473 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for the postoperative residuals of a perforated bowel. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and R.H. ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel INTRODUCTION The Veteran had active service from June 1969 to September 1971. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which denied the Veteran's claim of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for perforated bowel, postoperative. She perfected a timely appeal to that decision. In January 2006, the Veteran and R.H. appeared and offered testimony at a hearing before the undersigned Veterans Law Judge, sitting at the RO. A transcript of the hearing has been associated with the claims folder. By a February 2013 decision, the Board denied compensation under the provisions of 38 U.S.C.A. § 1151 for the postoperative residuals of a perforated bowel. The Veteran timely appealed the Board's denial to the Court of Appeals for Veterans Claims (Court). After the appropriate briefing, the Court issued a single-judge Memorandum Decision in August 2014, which vacated the Board's February 2013 decision and remanded the claim back to the Board for further clarification consistent with the Memorandum Decision. This claim has been returned to the Board at this time in compliance with the August 2014 Memorandum Decision. In addition to the paper claims file, there is a VMBS (the Veterans Benefits Management System) paperless claims file associated with the Veteran's claim. The documents in this virtual file were reviewed in conjunction with this appeal. FINDINGS OF FACT 1. On September 19, 1990, the Veteran was admitted to the VA hospital for gastrointestinal complaints, including chronic diarrhea. 2. On September 24, 1990, the Veteran underwent a barium enema, which resulted in a bowel perforation; the findings of the barium enema were consistent with ulcerative colitis. On the same day, she underwent exploratory laparotomy with ileostomy and cecostomy as well as incidental appendectomy. 3. The residuals of the Veteran's barium enema with exploratory laparotomy and ileostomy conducted at the Fayetteville VAMC in September 1990 are not shown to have been caused by the carelessness, negligence, lack of proper skill, error in judgment, or similar incidence of fault on the part of the VA in furnishing treatment, nor are the residuals the result of an event that was not reasonably foreseeable. 4. Prior to the barium enema, the Veteran was not informed about the specific potential post-surgical risk of a perforated bowel; the evidence is in equipoise regarding whether a reasonable person in similar circumstances would have proceeded with the barium enema procedure even if informed of the risk of a perforated bowel, to include subsequent postoperative residuals. CONCLUSION OF LAW The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for postoperative residuals of a perforated bowel due to barium enema performed at the VAMC in September 1990 have been met. 38 U.S.C.A. §§ 1151, 5103A, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.361 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). In this decision, the Board grants compensation for postoperative residuals of a perforated bowel; therefore, no further discussion of VA's duties to notify and to assist is necessary. II. Applicable Law and Regulations The law provides that compensation may be paid for a qualifying additional disability or qualifying death, not the result of the Veteran's willful misconduct, caused by hospital care, medical or surgical treatment, or examination furnished the Veteran when the proximate cause of the disability or death was: (A) 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 (B) an event not recently foreseeable. 38 U.S.C.A. § 1151. The regulations provide that benefits under 38 U.S.C.A. § 1151(a) for claims received by VA on or after October 1, 1997, as in this case, for additional disability or death due to hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program, require actual causation not the result of 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 natural progress. The additional disability or death must not have been due to the Veteran's failure to follow medical instructions. 38 C.F.R. § 3.361 (2012). It must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability or death, and that (i) VA failed to exercise the degree of care that would be expected of a reasonable health-care provider or that (ii) 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. To establish the proximate cause of an additional disability or death, it must be shown that there was 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. 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) (2012). In determining whether additional disability exists, the veteran's physical condition immediately prior to the beginning of the hospital care, medical or surgical treatment, or other incident in which the claimed disease or injury was sustained (i.e., medical examination, training and rehabilitation services, or work therapy), is compared to the veteran's condition after such treatment, examination or program has stopped. See 38 C.F.R. § 3.361(b). Provided that additional disability is shown to exist, the next consideration is whether the causation requirements for a valid claim have been met. In order to establish actual causation, the evidence must show that the medical or surgical treatment resulted in the Veteran's additional disability. See 38 C.F.R. § 3.361(c) (1). Furthermore, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. In order for additional disability to be compensable under 38 U.S.C.A. § 1151, the additional disability must have been actually caused by, and not merely coincidental to hospital care, medical or surgical treatment, or medical examination furnished by a VA. Loving v. Nicholson, 19 Vet. App. 96, 100 (2005). In order for additional disability to be compensable under 38 U.S.C.A. § 1151, the additional disability must have been the result of injury that was part of the natural sequence of cause and effect flowing directly from the actual provision of "hospital care, medical or surgical treatment, or examination" furnished by VA and that such additional disability was directly caused by that VA activity. Id at 101. III. Factual background In a statement, dated in September 2002, the Veteran indicated that she was working at a VA hospital in Fayetteville, Arkansas in September 1990 when she became ill. She stated that she was having chronic diarrhea and decided to go to the emergency room; she was prescribed medications. The Veteran related that the doctor told her to return if she wasn't better by the following Wednesday; she did go back and was admitted to the hospital. The Veteran stated that the doctors decided to set up an Air contrast Barium enema; and added that she asked them to stop the procedure on 3 occasions because it was painful, but they did not. The test resulted in perforating her colon. The Veteran indicated that they had to perform emergency surgery in order to save her life; they had to put a nasal-gastro tube down her throat and filled half a bottle with the poison that was in her stomach. The Veteran stated that she was in intensive care for over a week and when he returned to her room, the nurse who was changing her dressing looked at the incision and declared "that is no appendectomy scar;" at which point, she told her that she had not had an appendectomy. The nurse explained that her chart noted that she had had appendicitis. The Veteran noted that it was three weeks before the doctors knew whether she was going to live or not. The Veteran indicated that, since the time of the perforation to the present, she has had several surgeries on the colon and ostomies and she now has no colon; she has what is called an "Illeoanual Pull Through." The Veteran maintained that, at the time she was being treated at the VA hospital, no biopsies were done to determine the cause of the chronic diarrhea. The first biopsy was done in January 1991, at which time it was determined that she had ulcerative colitis; she now has liver problems and require a liver transplant as her liver is shutting down. She has been diagnosed with sclerosing cholangitis. Submitted in support of the Veteran's claim were VA as well as private treatment reports dated from September 1990 through October 2002. Among these records is an operation report from the VA medical center in Fayetteville, dated in September 1990, indicating that the Veteran had been hospitalized several days on the medical service for study of a worsening chronic diarrhea. She had a barium enema done this morning which showed evidence of ulcerative colitis with loss of haustral markings of the left colon. However, during the procedure, she experienced acute right lower quadrant pain and displayed the signs and symptoms of a perforated hollow viscous localized to the right lower quadrant. She was hemodynamically stable but had tachycardia and low urine output. At surgery, the cecum displayed subserosa emphysema with the bubbles of air extending proximally to the hepatic flexure. No gross perforation was apparent. The cecum was considerably distended. The diagnosis was a perforated bowel. In January 1991, the Veteran was admitted to Springdale Memorial Hospital with a diagnosis of chronic diarrhea, hematochezia, status post perforation of bowel, post air contrast barium enema. She underwent a colonoscopy with biopsies and ileoscopy; the assessment was status post colonoscopy with biopsies and ileoscopy. On April 2, 2001, the Veteran was seen for consultation for complaints of ulcerative colitis. It was noted that the Veteran developed diarrhea associated with the passage of blood per rectum in the summer of 1990; she also developed some fever at that time and eventually presented to the VA hospital in September 1990. At that time, she was admitted and apparently for a work up of an infections etiology. Her appliance was initiated but unremarkable. Subsequently, a barium enema was performed, which demonstrated some dilation as well as shortening of the colon. Following the performance of the barium enema, the Veteran developed atypical abdominal pain and was taken emergently to the operating theater by the surgical staff at the VA hospital. It was noted that she apparently was near perforation and she underwent a cecostomy as well as an ileostomy. She subsequently underwent colonoscopy as well as endoscopy of the small bowel. Her colon showed some mild nonspecific inflammatory changes; she was referred for surgical intervention. Past surgical history included an exploratory laparotomy with cecostomy, ileostomy, and appendectomy in September 1990. Following an evaluation, the impression was chronic ulcerative colitis with a toxic or near toxic episode this previous year requiring a diversionary procedure. The examiner stated that the Veteran was being admitted to the hospital to undergo corrective surgery. The barium enema was reviewed by him and showed significant loss of haustra in the colon. It was not particularly shortened but certainly his opinion had changes compatible with a significant degree of colitis. Further endoscopic evaluation of the Veteran after diversion revealed some mild persistent disease. In August 1999, the Veteran underwent sigmoidoscopy which revealed dysplasia. She was referred for a consultation and possible repeat flexible sigmoidoscopy. A sigmoidoscopy, performed August 18, 1999, revealed colonic mucosa, with active colitis, ulceration, loss of glands, and mild dysplasia consistent with history of inflammatory bowel disease. In November 1999, the Veteran was admitted to Northwest Medical Center with a diagnosis of chronic ulcerative colitis with dysplasia. It was noted that she had previously had a subtotal abdominal colectomy for idiopathic indeterminate colitis; over the years she had demonstrated compatible with ulcerative colitis in the remaining segment of the large bowel. She has been treated maximally with medications, but her disease has continued to worsen. It was noted that two separate endoscopic procedures with biopsies of the large bowel revealed dysplasia; she also had associated sclerosing cholangitis. It was felt that it was time for her to have her proctectomy completed. She underwent cystoscopy and placement of bilateral uretheral stents, restorative proctocolectomy with ileoanal pull-through with J-pouch ileostomy, extensive lysis of adhesions, repair of ventral hernia, and right subclavian central line. The discharge diagnoses were chronic ulcerative colitis with dysplasia, leucopenia, anemia, extensive intraabdominal adhesions, and ventral hernia. Received in December 2002 were additional VA and private treatment reports, dated from September 1990 through, which show that the Veteran received occasional surgical intervention and treatment for ulcerative colitis and primary sclerosing cholangitis. The records indicate that the Veteran was admitted to a VA hospital on September 19, 1990; at that time, it was noted that the Veteran was seen on September 19, 1990 for complaints of fever, chills, weakness, nausea, diarrhea and abdominal pain for the past 3 to 4 months. The Veteran also reported blood in the stool on September 17, 1990 and history of occasional migraines. A barium enema study, dated September 24, 1990, was felt to be consistent with ulcerative colitis, with no evidence of neoplasm, polyps or diverticulae. It was noted that the Veteran appeared to have developed free air in the abdomen, and the possibility of a ruptured appendix would have to be considered. Among these records is a copy of a consent form, which the Veteran signed on September 24, 1990, by which she agreed to undergo exploratory laparotomy for ruptured bowel/appendectomy. A clinical record, dated September 25, 1990 indicates that the Veteran was admitted to the hospital with fever, nausea and abdominal pain; she was taken to surgery on September 24, 1990 for exploratory laparotomy with ileostomy and incidental appendectomy and placement of right subclavian catheter. A surgical pathology report, dated September 27, 1990, indicates that the Veteran had signs and symptoms of surgical abdomen occurring during barium enema. Peritoneum was contaminated without gross perforation evident. Procedure was diversion with incidental appendectomy. The report noted that section of the appendix showed no significant pathology. In June 2000, the Veteran was admitted to the hospital for ileostomy and resection of the colon. Treatment reports dated in 2001 and 2002 show that the Veteran continued to receive follow up evaluation for ulcerative colitis and residuals of the laparotomy and appendectomy. In December 2003, the Veteran's claims folder was referred to a VA examiner for review and opinion regarding the cause of the Veteran's conditions. The examiner noted that the Veteran underwent a barium enema on September 24, 1990, which showed evidence of ulcerative colitis with loss of the haustral markings of the left colon. However, following the procedure in mid-morning, she experienced acute right lower quadrant pain and displayed signs and symptoms of a perforated hollow discus localized to the right lower quadrant. She was taken to surgery and an ileostomy was performed at that time. The examiner stated that the barium enema was an appropriate choice as a diagnostic tool for further investigation of her symptoms. The examiner also stated that, given the history as reviewed in the claims file, there are no contraindications for this test noted. The examiner explained that perforation of the bowel is always a possible complication of barium enema in any patient. The Veteran did show ulcerative colitis on that examination. Although perforation of the bowel is a rare complication, there is no evidence that this was foreseeable by the practitioner performing this examination on the Veteran. The examiner stated that there is no evidence of any carelessness, negligence, lack of proper skill, etc., on the part of the practitioner and there is no evidence that this was reasonably foreseeable. Furthermore, the Veteran's symptoms were addressed in a timely fashion and in an appropriate manner following the procedure. The examiner concluded that there appears to be no evidence of any error in judgment or other faults on the part of the practitioners who took care of the Veteran, but rather this was an unfortunate unforeseeable and unpreventable complication related to this diagnostic procedure. There appears to be no evidence of any contraindications for this test, which would have alerted the practitioner of possible bowel perforation or other complication, which although rare does occur with this procedure. On the occasion of a VA examination in January 2004, it was noted that the Veteran had a known history of chronic diarrhea with ulcerative colitis. She was seen in 1990 and underwent a barium enema, but subsequently developed a perforation of her bowel. She had a colon resection at that time; since then, she has had eight different surgeries including colon resection. In 2001, she had a hysterectomy with removal of her gallbladder, and at that time developed liver failure. She underwent liver transplant in 2003. Since that time, she has had chronic anemia receiving a transfusion every two to three months. She has occasional nausea and vomiting, but chronic and frequent diarrhea which is somewhat diet dependent. She has some urgency of her bowel and loss of control of bowels since her ilio-anal pull through. Following a physical examination, the pertinent diagnoses were ulcerative colitis, status post colon resection with ilio-anal pull through; and liver failure, status post liver transplant. At her personal hearing in January 2006, the Veteran indicated that she went to the emergency room at the VA facility because she had been experiencing chronic diarrhea for three and a half months with rectal bleeding. She stated that she was a VA employee at that time. The Veteran reported that she was examined and given some medication; she was told to return if the symptoms did not improve in three days. The Veteran stated that she returned to the emergency room; they ran some tests and found nothing conclusive, so they decided to do a barium enema. The Veteran testified that she was informed as to what type of complications might occur with that test; she stated that her mother and husband had both had barium enemas in the past without any complications. The Veteran related that she was in so much pain that she asked them to stop the procedure on three occasions; however, they did not stop the procedure until they were finished. The Veteran maintained that she went to a rectal colon specialist who stated that she probably had a toxic colon; if so, a barium enema is not the procedure to use. The Veteran also maintained that had the procedure been stopped when she complained of pain, she would not have suffered a perforation of the bowel. The Veteran also testified that it was explained to her that x-rays revealed that her colon had been expanded sufficiently and did not require air contrast. The Veteran indicated that she also learned that another doctor from outside of VA had to be called in to perform the surgery. The Veteran further maintained that she sustained many residual problems as a result of the barium enema and the perforated bowel, including the need to remove her appendix and damage to the liver and gallbladder. In January 2007, the Veteran's claims folder was referred to a medical expert for an opinion regarding the September 1990 barium enema. Following a review of the claims folder, in March 2007, the physician stated that there appeared to be no absolute contraindication for air-contrast barium enema. The physician stated that recognized contraindications for single or double contract barium enema include toxic megacolon, suspected severe acute ulcerative colitis and possible colonic perforation, or immediately after endoscopic biopsy. The Veteran's scout film, prior to the insufflation of air demonstrated no evidence of abnormality or secondary evidence of free air. Therefore, there was no definitive bowel dilation or considerable colonic wall thickening present radiographically to suggest toxic megacolon or marked inflammation. The physician stated, although the Veteran's condition was subsequently attributed to ulcerative colitis, the diagnosis was unknown at the time of presentation. In addition, the degree of inflammation from the clinical notes did not seem to be severe. The physician stated that air contrast barium enemas are a very common radiologic procedure performed to evaluate colorectal pathology and regularly use to assess chronic diarrhea, including inflammatory bowel disease. Its utilization has significantly decreased in recent years with the advance of multidetector-row CT and MR imaging. The safety profile of double-contract barium enema is well established. The possibility of using colonoscopy as an alternative diagnostic method was suggested in the reviewed records which is also a viable alternative. However, recent publications estimate "the risk" of perforation after barium enema to be substantially lower than after colonoscopy. The physician stated, based on the review of the records, no definitive evidence exists that the double-contrast barium enema was performed incorrectly. The physician concluded that the Veteran's colonic perforation was an unfortunate and unpreventable complication related to this diagnostic procedure. There appears to have been no definitive contraindication for the barium enema. Received in January 2009 were VA outpatient treatment reports dated from April 2006 to March 2007. These records reflect treatment for disabilities unrelated to the colon. Of record is an email message from the Office of General Counsel, dated in November 2011, indicating that they had contacted the risk managers for the Little Rock and Fayetteville VA medical centers as well as the office of Medical Legal Affairs and had had no luck locating any medical malpractice claim filed by the Veteran. A formal finding of unavailability, dated in March 2012, also noted that the Office of General Council indicated that all records are destroyed after 6 years. He stated that there was no evidence of a tort claim for a September 1990 barium enema procedure at the VAMC in their computer system, as they were not using this system during the 1990's. Therefore, they had no records and no evidence of the tort claim in 1991; further efforts to obtain those records would be futile. IV. Legal Analysis The Board will begin by addressing the first requirement of a 38 U.S.C.A. § 1151 claim - an additional disability. 38 C.F.R. § 3.361(b). Applying the above facts to the aforementioned law, the Board finds that, since the Veteran's September 24, 1990 air contrast barium enema procedure, she has developed an additional disability. Following the procedure, the Veteran developed acute right lower quadrant pain and displayed signs and symptoms of a perforated hollow discus localized to the right lower quadrant. It was noted that the Veteran appeared to have developed free air in the abdomen and the possibility of a ruptured appendix was considered. She was taken emergently to the operating theater by the surgical staff at the VA hospital and underwent an exploratory laparotomy with ileostomy and incidental appendectomy and placement of right subclavian catheter. In June 2000, the Veteran was admitted to the hospital for ileostomy and resection of the colon. Treatment reports dated in 2001 and 2002 show that the Veteran continued to receive follow-up evaluation for ulcerative colitis and residuals of the laparotomy and appendectomy. This is confirmed by medical reports of record, as well as the comprehensive and probative evaluation report (IME) provided by the board certified radiologist in March 2007. Thus, the Board finds that the first requirement of an additional disability has been satisfied. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361(b). The Board will now address the second requirement of a 38 U.S.C.A. § 1151 claim - an additional disability caused by VA treatment. 38 C.F.R. § 3.361(c). Applying the above facts to the aforementioned law, the Board finds that the Veteran's additional disability of postoperative residuals of a perforated bowel were incurred as a result of VA treatment - namely, the air contrast barium enema procedure in September 1990. In this regard, the March 2007 IME physician indicated that the Veteran had additional disability as result of the September 1990 surgery by stating that she had a colonic perforation that was the complication related to the [air contrast barium enema] procedure. Therefore, the Board finds that the Veteran's postoperative residuals of a perforated bowel were incurred as a result of VA treatment - namely, the barium enema procedure in September 1990. The Board will now address proximate causation. As previously stated, the first prong of proximate causation is satisfied if: (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider (i.e., negligence); OR, (ii) 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). The Board will address the first prong regarding VA's degree of care that would be expected of a reasonable health care provider in this section. Applying the above facts to the aforementioned law, the Board finds that the Veteran's postoperative residuals of a perforated bowel was not proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in furnishing reasonable care. Id. In this regard, the opinions of the December 2003 VA examiner and the March 2007 IME physician all persuasively demonstrate that there is no evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing surgical treatment. The December 2003 VA examiner explained that perforation is always a possible complication of barium enema in any patient and that although perforation of the bowel was a rare complication, there was no evidence that such was foreseeable by the practitioner performing the examination on the Veteran. The examiner stated that there was no evidence of any carelessness, negligent, lack of proper skill, etc. on the part of the practitioner and there was no evidence that such was reasonably foreseeable. Similarly, the March 2007 IME physician additionally noted that air contrast barium enemas are a very common radiologic procedure performed to evaluate colorectal pathology and regularly used to assess chronic diarrhea. It was further noted that the safety profile of double-contract barium enema is well established and that the possibility of using colonoscopy as an alternative diagnostic method was suggested in the reviewed records which was also a viable alternative. However, the IME clinicians explained that recent publications estimated "the risk" of perforation after barium enema to be substantially lower than after colonoscopy. The physicians stated, based on the review of the records, no definitive evidence existed that the double-contrast barium enema was performed incorrectly. The physician concluded that the Veteran's colonic perforation was an unfortunate and unpreventable complication related to this diagnostic procedure. There also appeared to have been no definitive contraindication for the barium enema. There are no contrary opinions of record. Thus, the Board finds that the evidence of record does not establish that VA failed to exercise the degree of care that would be expected of a reasonable health care provider (i.e., negligence). 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361(d)(1). As previously stated, the first prong of proximate causation is satisfied if: (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider (i.e., negligence); or, (ii) 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). The Board will address informed consent in this section. Applying the above facts to the aforementioned law, the Board finds that the Veteran was not provided informed consent prior to the air contrast barium enema procedure in September 1990. In this regard, the presumption of regularity presumes that public officers perform their official duties correctly, fairly, in good faith, and in accordance with law and governing regulations. See Marsh v. Nicholson, 19 Vet. App. 381, 385 (2005); see also Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009) (applying the presumption of regularity to the competence of VA examiners). However, the Court has clarified that the presumption of regularity does not apply to the scope of the information provided to a patient by a doctor with regard to the risks involved with any particular treatment. McNair v. Shinseki, 25 Vet. App. 98, 103-04 (2011). In other words, the presumption of regularity does not apply to generic informed consent forms, where there is a dispute concerning what information a doctor provided to his patient. Id. The Court in McNair found that when, as here, there is a dispute concerning what information a doctor provided to his patient, a factual issue is raised regarding whether a generic consent form indicating the patient was advised of the risks of surgery was more probative than the Veteran's lay statements that a specific risk of the surgery was not discussed. Id; See Salis v. United States, 522 F. Supp. 989, 1000 (M.D.Pa. 1981) (noting that when there is a general consent form and contrary lay assertions, the issue becomes one of credibility for the trier of fact). The Court found that this was a factual finding that must be made by the Board in the first instance based on all of the evidence in the record. Id.; see Roberts v. Shinseki, 23 Vet. App. 416, 423 (2010) (determining that the Board has duty to weigh and analyze all the evidence of record (citing Burger v. Brown, 5 Vet. App. 340, 342 (1993))). In this case, the evidence of record does not contain an actual informed consent form concerning the Veteran's barium enema procedure on September 24, 1990. The only informed consent form of record pertains to an emergent exploratory laparotomy with ileostomy and cecostomy as well as incident appendectomy that was performed on the same day after complications resulting from the Veteran's barium enema. In fact, while the Veteran's representative noted that the Veteran was a nurse's aide and was aware that the procedure had rare complications, the Veteran testified that she was not told what type of foreseeable complications may happen upon having an air contrast barium enema procedure and had no idea what such could cause. See Hearing Transcript, at p.3, 13. She further testified that her mother and husband underwent the same procedure in the past without complications. Id. at 3. The Board acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which he has first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Whether lay evidence is competent and sufficient in a particular case is a fact issue. Davidson, 581 F.3d at 1313; Jandreau, 492 F.3d at 1372. Here, the Board finds that the Veteran is competent to report that she was not informed about the potential surgical risks (specifically, a perforated bowel) of an air contrast barium procedure, as this involves first-hand knowledge that would have been conveyed directly to her. As noted, the actual consent form generated in conjunction with the September 1990 surgery is not of record. There is no other evidence in the claims file to suggest that a possible perforated bowel and subsequent postoperative residuals was discussed with the Veteran prior to the September 1990 barium enema procedure. In fact, the Veteran testified that when she initially presented with complaints of chronic diarrhea and nausea, tests were ran and because nothing was conclusive, [VA hospital personnel] said they were going to [perform] a barium enema. See Hearing Transcript, p. 3. Furthermore, while the March 2007 IHE physician stated that the possibility of using colonoscopy as an alternative diagnostic method was suggested in the reviewed records, he also mentioned that multidetector-row CT and MR imaging may have been another viable alternative. The record does not show that the latter option (or other viable alternatives) was presented to the Veteran prior to her barium enema procedure. Thus, resolving all doubt in favor of the Veteran, the Board finds that prior to the barium procedure in September 1990, the Veteran was not directly informed by a VA health care provider about the potential post-surgical risk of a perforated bowel and subsequent postoperative residuals. 38 C.F.R. § 3.361(d)(1). The Court, however, has held that the failure to provide information to a patient about a potential adverse effect does not defeat a finding of informed consent if a reasonable person faced with similar circumstances would have proceeded with the treatment. McNair, 25 Vet. App. at 105 -07. If a reasonable person faced with similar circumstances would have proceeded with the treatment, then this is a minor, immaterial deviation from the informed consent requirements. Id. at 107; see 38 C.F.R. § 17.32. A minor, immaterial deviation from the requirements of 38 C.F.R. § 17.32 will not defeat a finding of informed consent. The Court found that this reasonableness test is a factual finding that the Board must make in the first instance; however, the Court provided factors for the Board to consider. McNair, 25 Vet. App. at 107-08; see Roberts, 23 Vet. App. at 423. The Court indicated that the adjudicator must "not only must look to the likelihood of an undisclosed risk materializing, but also recognize that some foreseeable risks may be minor when compared to the foreseeable consequences of continuing without undergoing the treatment." McNair, 25 Vet. App. at 107 -08; see Smith v. Cotter, 107 Nev. 267, 810 P.2d 1204, 1209 (1991) (determining that the plaintiff's thyroid problem was a minor irritant when compared to the risk of permanent vocal cord paralysis). The Court also stated that the Board should consider the "consequences of proceeding with surgery versus foregoing surgery, which are key factors upon which one might evaluate whether a reasonable person would have proceeded with the surgery." McNair, 25 Vet. App. at 107 -08. The Board finds that, given the Veteran's circumstances prior to her air contrast barium procedure in September 1990 (i.e., fever, chills, weakness, nausea, diarrhea and abdominal pain for 3 to 4 months), the evidence is in equipoise regarding whether a reasonable person would have proceeded with the surgery even if they had known about a perforated bowel being a potential surgical complication. While it is not entirely clear in this case what would have resulted if the Veteran had not had an air contrast barium procedure in September 1990 (especially considering that she had been dealing with her symptoms for 3 to 4 months prior and there may have been other viable alternative diagnostic methods available, such as multidetector-row CT and MR imaging as noted by the March 2007 IHE physician), the Board finds evidence to be in equipoise regarding whether a reasonable person would have found that their pre-surgery symptoms (i.e., nausea and chronic diarrhea) was not significant and that the foreseeable risk was high, even if the procedure was successful. As a result, a reasonable person faced with these similar pre-surgery symptoms would not have proceeded with the air contrast barium procedure because the benefits of the procedure outweighed any risk of a perforated bowel. When all the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Here, for the aforementioned reasons and bases, the Board finds that the evidence is in equipoise regarding the Veteran's claim. The Board is granting entitlement to compensation under 38 U.S.C.A. § 1151 for an additional disability, postoperative residuals of a perforated bowel. Any failure to notify or assist her is inconsequential and, therefore, at most, no more than harmless error. ORDER Compensation under 38 U.S.C.A. § 1151 for the postoperative residuals of a perforated bowel is granted, subject to governing criteria applicable to the payment of monetary benefits. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs