Citation Nr: 1604343 Decision Date: 02/05/16 Archive Date: 02/11/16 DOCKET NO. 08-38 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for residuals of treatment provided by the Department of Veterans Affairs Medical Center (VAMC) in Fayetteville related to a January 2008 colonoscopy. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service with the United States Navy from November 1965 August 1972 and from January 1977 to May 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied entitlement to benefits under 38 U.S.C.A. § 1151. The Veteran appealed the denial, and the matter is now before the Board. FINDING OF FACT 1. Additional residual disability resulted from a 2008 colonoscopy, and was caused by VA treatment in January 15, 2008. Additional disability, however, was not the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in furnishing medical treatment. 2. The proximate cause of additional disability resulting from VA treatment in January 15, 2008 was not a reasonably foreseeable event. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for additional disabilities of due to a January 15, 2008 colonoscopy performed by VA, have been met. 38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. § 3.361 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION On January 15, 2008, the Veteran underwent a colonoscopy at a VA facility in Fayetteville, Arkansas, and was discharged to his home. That evening, both the Veteran and VA records reflect that he began to experience discomfort and abdominal cramping. He and his wife contacted the VA facility by phone, and they were told to call 911. The Veteran explained his preference to have his wife drive him to a nearby private facility, which she did. Once at the St. Edward Mercy Medical Center, computerized tomography (CT) imaging showed possible thickening in the cecal area, and a subsequent CT scan confirmed a perforation. Thereafter a partial colectomy was performed, and the wound left open with retention sutures and a "wound vac" was placed. The Veteran was then discharged in stable condition. As accurately described in a January 2015 VA examination report, surgical scars left from the partial colectomy "stretched out" over time, and in April 2012 surgery was performed to repair the resulting midline abdominal wall bulge (i.e., hernia). Regrettably, the surgery resulted in infection and other complications addressed in a September 2012 corrective surgical procedure. The 2008 partial colectomy and subsequent hernia repairs have resulted in a "scar that is wider than usual, with some resulting abdominal wall weakness, and more pain in the scar site than is usual," as described by the January 2015 examiner. Additionally, the Veteran now has loose stool/diarrhea, a disorder which represented "mild difficulties, such as intermittent feeling of urgency to move the bowels, with rare accidents/leakage." The Veteran contends that perforations incurred during a colonoscopy at a VA facility were the result of carelessness, negligence, lack of proper skill, error in judgement, or a similar instance of fault on the part of VA, and thus he is entitled to compensation for residuals of such care under 38 U.S.C.A. § 1151. Pursuant to 38 U.S.C.A. § 1151, compensation may be awarded for a qualifying additional disability in the same manner as if the additional disability or death were service connected. In order to qualify for such compensation, the additional disability must not have been the result of the veteran's willful misconduct, and the disability must have been caused by hospital care, medical or surgical treatment, or examination provided under the laws administered by VA. In order to constitute a qualifying additional disability, the proximate cause of the disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment, or examination, or (2) an event not reasonably foreseeable. To determine whether an additional disability was caused by medical treatment, VA compares the veteran's condition immediately before the beginning of such treatment to his condition thereafter. To establish causation, the evidence must show that the treatment resulted in the veteran's additional disability. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. Disability that is due to the continuance or natural progress of the disease is not due to VA treatment unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. Additionally, 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(b), (c), (d) (2015). To establish that carelessness, negligence, lack of proper skills, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment proximately caused a veteran's additional disability or death, it must be shown that the medical treatment caused the additional disability or death, and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or that VA furnished the medical treatment without the veteran's informed consent. 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). The complete claims file and treatment history were reviewed by a VA examiner in January 2015, who concluded that the Veteran did indeed have residuals from the 2008 colonoscopy and resulting perforation, including painful abdominal scarring, and loose stools/diarrhea. The examiner concluded, however, that there was no failure to exercise the degree of care that would be expected of a reasonable health-care provider in the provision of the colonoscopy. In concluding as much, the examiner noted that the operative report shows that the procedure went smoothly, the colonoscopy was "thorough," the nature of the identified polyps removed demonstrates a significant degree of expertise with the procedure, the procedure was performed in a timely matter, the Veteran's family history was a strong indicator for performing the colonoscopy, and finally it was noted that informed consent was provided. The VA examiner also opined that VA did not show carelessness, negligence, lack of proper skill, error in judgement, or a similar instance of fault, and that "based on [her] review of the case and the medical literature, fault on the VA's part was not shown, and supported her conclusion with well-reasoned logic and factual determinations confirmed by the record. Nonetheless, she finally concluded that the Veteran's residuals and the events leading to them were "not reasonably foreseeable." Specifically, the perforation itself is a reasonably foreseeable event following a colonoscopy examination and is "one of the more common complications." However, it is not reasonably foreseeable that herniation at the site of a surgical scars left from repairing the perforation would result in still subsequent surgical intervention. In total, the examiner concluded that "[t]he Veteran's residuals from the colonoscopy procedure are not a common occurrence, and would not at all be typically foreseen." Thus, as the evidence indicates that the Veteran's additional disability was the result of an event not reasonably foreseeable, and that event was precipitated by VA care, the Board finds that residuals of a 2008 colonoscopy were proximately caused by as a result of VA treatment. There is no finding of negligence or fault on the part of VA, but the criteria for the award of compensation benefits under 38 U.S.C.A. § 1151 are met with the determination that an unforeseeable event that was not due to the Veteran's misconduct. Accordingly, the Veteran's claim is granted. (CONTINUED ON NEXT PAGE) Duties to Notify and Assist VA has duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). The Board is granting, in full, the benefit sought on appeal and VA has no further duty to notify or assist. ORDER Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for residuals of a January 2008 colonoscopy performed by VA are granted. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs