Citation Nr: 1626596	
Decision Date: 07/01/16    Archive Date: 07/14/16

DOCKET NO.  10-40 806A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of bowel perforation / damage to the colon (to include the need for surgical resection of the large intestine / hemicolectomy, and associated deconditioning / weight loss) claimed to have resulted from a May 11, 2012 colonoscopy and polypectomy performed by the VA Medical Center in Oklahoma City, Oklahoma.

2.  Entitlement to compensation under 38 U.S.C.A. § 1151 for respiratory disability (featuring recurrent pneumonia/empyema, the need for ventilator tracheostomy, and severe respiratory compromise with neuromuscular debilitation) claimed to have resulted from a May 11, 2012 colonoscopy and polypectomy performed by the VA Medical Center in Oklahoma City, Oklahoma.

3.  Entitlement to a compensable rating for bilateral hearing loss prior to August 14, 2015, and to a rating in excess of 20 percent from that date.

4.  Entitlement to compensation under 38 U.S.C.A. § 1151 for damage to the liver resulting from prescription drugs given by the VA Medical Center in Oklahoma City, Oklahoma.
5.  Entitlement to a total disability rating based on individual unemployability (TDIU).

6.  Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance (A&A) or on housebound status.


REPRESENTATION

Appellant represented by:	Polly Murphy, Attorney at Law


WITNESS AT HEARING ON APPEAL

Appellant's Spouse


ATTORNEY FOR THE BOARD

A. Barone, Counsel


INTRODUCTION

The appellant is a Veteran that had active service from November 1968 to September 1972.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2009, July 2013, and November 2014 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Muskogee, Oklahoma (RO).  In April 2012, the Veteran and his spouse provided testimony at a videoconference hearing before an Acting Veterans Law Judge (AVLJ).  A transcript of the hearing is associated with the electronic claims file.

In April 2014, the Board issued a decision granting service connection for type II diabetes mellitus and denying service connection for tinnitus; hence, those issues are no longer on appeal.  The April 2014 Board decision also remanded the issue regarding the rating for bilateral hearing loss.  An August 2015 rating decision increased the rating for bilateral hearing loss from O to 20 percent, effective, August 14, 2015.

In February 2016, this case returned to the Board with additional issues added to the hearing loss issue on appeal.  The Board remanded the case for a Board hearing addressing the new issues on appeal in accordance with the Veteran's request.  He was scheduled for a new videoconference hearing in May 2016, but was unable to attend due to medical concerns.  He provided a signed authorization for his wife and his attorney to attend the hearing in his place, and those individuals attended the May 2016 videoconference hearing before the undersigned.  A transcript of that hearing is in the record.

On the record during the May 2016 Board hearing, the Veteran's representative confirmed that the Veteran was withdrawing the hearing loss and liver disability issues from the appeal.  As a result, none of the issues addressed at the April 2012 Board hearing before an AVLJ remain in appellate status, and it is appropriate for the undersigned to address the remaining issues without arranging for a panel decision.  See 38 C.F.R. § 20.707; Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011).

The Board notes that the evidence in this case, including a January 2013 report from the Veteran's private physician, suggests that the Veteran may suffer from a psychiatric disability or symptomatology ("depression") secondary to the bowel and lung disabilities for which entitlement to compensation is granted in this decision (as discussed below).  The Board finds that the evidence of record raises a claim of entitlement to compensation under 38 U.S.C.A. § 1151 for depression secondary to damage to colon during the May 2012 colonoscopy performed by the VA Medical Center in Oklahoma City, Oklahoma.  This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b).  [The Board notes that, effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary.  These amendments are applicable with respect to claims and appeals filed on or after March 24, 2015, and are not applicable in the present case because the Board finds that evidence received in January 2013 raised the claim being referred to the AOJ.]

The Board notes that the colon and lung issues were characterized in general terms in the Board's February 2016 remand.  As the Board now finds that entitlement to compensation for the complications of the Veteran's May 2012 VA colonoscopy and polypectomy is warranted, the Board has re-characterized the issues with inclusion of more specific reference to some of the details of the disability entities for which compensation is warranted.  As discussed below, the medical evidence of record (including, in particular, a January 2013 report and medical opinion by the Veteran's private physician), indicates that the Veteran's May 2012 VA colonoscopy and polypectomy resulted in complications including (1) perforation of the bowel, (2) the need for surgical resection of the large intestine / hemicolectomy, (3) substantial deconditioning / weight loss, (4) recurrent pneumonia/empyema, (5) the need for ventilator tracheostomy, and (6) severe respiratory compromise with neuromuscular debilitation.  The Board has recharacterized the colon and lung issues to more clearly describe these details of the nature of the associated impairment, as reflected on the title page of this decision.

The issues of entitlement to a TDIU rating and entitlement to SMC based on the need for regular aid and attendance (A&A) or on housebound status are being REMANDED to the AOJ.  VA will notify the Veteran if action on his part is required.


FINDINGS OF FACT

1.  On the record at the May 2016 Board hearing, prior to the promulgation of a decision in the matters, the Veteran's representative notified the Board that the Veteran was withdrawing his appeals seeking an increased rating for bilateral hearing loss and compensation under 38 U.S.C.A. § 1151 for damage to the liver; there are no questions of fact or law in these matters remaining for the Board to consider.

2.  It is reasonably shown that the Veteran's colon damage (to include perforation of the bowel, the need for surgical resection of the large intestine / hemicolectomy, and associated deconditioning / weight loss) resulted from VA treatment that was provided without the Veteran's adequately informed consent and was not a reasonably foreseeable consequence of such treatment.

3.  It is reasonably shown that the Veteran's respiratory disability (featuring recurrent pneumonia/empyema, the need for ventilator tracheostomy, and severe respiratory compromise with neuromuscular debilitation) resulted from VA treatment that was provided without the Veteran's adequately informed consent and was not a reasonably foreseeable consequence of such treatment.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of an appeal by the Veteran are met with respect to the claims seeking an increased rating for bilateral hearing loss and compensation under 38 U.S.C.A. § 1151 for damage to the liver; the Board has no further jurisdiction in such matters.  38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015).

2.  The criteria for establishing entitlement to benefits under 38 U.S.C.A. § 1151 are met for the Veteran's colon damage (to include perforation of the bowel, the need for surgical resection of the large intestine / hemicolectomy, and associated deconditioning / weight loss).  38 U.S.C.A. §§ 1151, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.361 (2015).

3.  The criteria for establishing entitlement to benefits under 38 U.S.C.A. § 1151 are met for the Veteran's respiratory disability (featuring recurrent pneumonia with empyema, the need for ventilator tracheostomy, and severe respiratory compromise with neuromuscular debilitation).  38 U.S.C.A. §§ 1151, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.361 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Dismissal of Appeals Withdrawn at Hearing

The Veteran's appeal includes claims seeking an increased rating for bilateral hearing loss and compensation under 38 U.S.C.A. § 1151 for damage to the liver resulting from prescription drugs given by the VA Medical Center in Oklahoma City, Oklahoma.  However, the Veteran's representative expressly withdrew the appeal on these claims on the record during the May 2016 Board hearing (in addition to a March 2016 signed written statement withdrawing the hearing loss issue).  The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary.  38 U.S.C.A. § 7104; 38 C.F.R. § 20.101.  Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  An appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202.  Withdrawal may be made in writing or on the record at a hearing by the appellant or by an authorized representative.  38 C.F.R. § 20.204.

Inasmuch as the Veteran has withdrawn his appeals seeking an increased rating for bilateral hearing loss and compensation under for 38 U.S.C.A. § 1151 for damage to the liver, there is no allegation of error of fact or law remaining before the Board concerning these matters.  Hence, the Board does not have jurisdiction to consider an appeal in these matters, and the appeal of these issues must be dismissed.

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA applies to the instant claims.  However, as the benefits sought are being granted (to the extent of the compensation claims being addressed with a final decision at this time), there is no reason to belabor the impact of the VCAA on this matter; any notice or duty to assist omission is harmless.  Accordingly, the Board will address the merits of the claims.

Legal Criteria, Factual Background, and Analysis

Initially, the Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.

When a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by 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.  To establish entitlement to benefits under 38 U.S.C.A. § 1151, the veteran must show each of the following: the disability or additional disability claimed; VA treatment; a nexus between the additional disability and the VA treatment; and that the proximate cause of the additional disability was some element of fault on the part of VA, or was an event not reasonably foreseeable.  See VAOPGCPREC 40-97; 38 U.S.C.A. § 1151.

To determine whether there is additional disability, VA compares the veteran's physical condition immediately prior to the beginning of the VA medical or surgical treatment the Veteran was provided to the Veteran's physical condition after such care had ceased.  38 C.F.R. § 3.361(b).

To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, resulted in the veteran's additional disability.  Merely showing that a veteran received care, treatment, or examination and has additional disability does not establish cause.  38 C.F.R. § 3.361(c).

To establish that fault on the part of VA caused the additional disability, it must be shown that VA hospital care, medical or surgical treatment, or examination caused the additional disability and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or 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).

Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32.  Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent.  See 38 C.F.R. § 3.361(d)(1).

Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient or the patient's surrogate of the proposed diagnostic or therapeutic procedure or course of treatment.  The practitioner, who has primary responsibility for the patient or who will perform the particular procedure or provide the treatment, must explain in language understandable to the patient or surrogate the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done.  The patient or surrogate must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion.  The practitioner must advise the patient or surrogate if the proposed treatment is novel or unorthodox.  The patient or surrogate may withhold or revoke his or her consent at any time.  38 C.F.R. § 17.32(c).

When evaluating the evidence of record, the Board must analyze its credibility and probative value, account for evidence which it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the appellant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992).

The Veteran contends that he suffers from significant additional disability, featuring colon and lung impairments, as a result of VA treatment on May 11, 2012.  His claim for compensation under 38 U.S.C.A. § 1151 was received in May 2012.

A November 2012 medical opinion from the Chief of the GI Section from the VA facility that provided the treatment in question discusses the matter; the author was not directly involved in the treatment and provided an opinion based upon review of the medical documentation.

The November 2012 VA medical opinion first presents a summary of the facts as interpreted by the author from review of the medical documentation of record.  The author states that the Veteran "did undergo a colonoscopy with polypectomy on May 11, 2012," and that "[t]his exam was performed by Dr. Don Kastens (Attending) and Dr. Vu Le (Fellow) for follow up of polyps previously found with high grade dysplasia in at least one of the polyps."  The November 2012 VA medical opinion notes that the second polyp site "was tattooed with incomplete removal in 12/2010," and was later successfully removed "in 1/2011."  The VA medical opinion explains that during the May 11, 2012 VA treatment, "[a] large polyp was found ... near the tattooed site of previous polypectomy," and that "[i]t was removed ....  The lift was successful and polyp completely excised."  The VA medical opinion notes that "[a]ll of these steps were photo documented," and "[t]he patient was discharged to home without complaint."  The VA medical opinion further notes that "[l]ater than night he had discomfort," and states that the Veteran "failed to seek medical attention until the next day."  The opinion discusses that when the Veteran sought evaluation of his "abdominal pain" the day following the VA colonoscopy, "imaging showed free air suggesting perforation," and the Veteran underwent "a right hemicolectomy with primary re-anastomosis of small bowel to colon."  The VA medical opinion then states that "[t]his surgical repair broke down," leading to "an extended hospital stay with surgical drainage and revision [] performed before patient transferred to an extended care facility."

The November 2012 VA medical opinion states that: "The patient had a right hemicolectomy as a result of a perforation that occurred in a delayed fashion after his colonoscopy.  This is usually a result of undetected thermal injury to the mucosa (so-called post polypectomy syndrome)."  The VA medical opinion asserts that "[t]he records document proper consent was obtained and the procedure was properly performed with attention given to preventing perforation by closing the defect in mucosa with clips."  The VA medical opinion further explains that "[t]he pathology subsequently obtained documented high grade dysplasia (essentially carcinoma in situ) which might well have led to this procedure (surgical resection of the right colon) being required a[ny]way."  Furthermore: "in-situ malignancy in the resected specimen may also have contributed to this perforation as this has been documented to be a risk factor."

The November 2012 VA medical opinion concludes that "[t]here is no evidence that improper performance of the colonoscopy resulted in the known complication that the patient experienced which occurred on the day following the procedure."  Additionally, the VA medical opinion concludes that "[i]t is also unlikely that a practitioner could have foreseen that the patient would have a complication of this nature," although the VA medical opinion qualifies this statement by adding: "other than that perforation is a known complication of colonoscopy and can occur up to several days later."

The November 2012 VA medical opinion clearly states: "The medical records in this case support the premise that the patient did suffer a complication of a procedure, colonoscopy that resulted in a loss of bowel and a complicated postoperative course."  The opinion adds a statement that "[i]t is not likely that this complication occurred as a result of negligence, carelessness, or lack of skill on the part of the VA practitioner involved."

The Veteran has submitted a VA Intestinal Surgery Disability Benefits Questionnaire (DBQ) completed by his private physician, Dr. Allee, in January 2013.  This January 2013 report clearly identifies that the Veteran underwent resection of the large intestine in May 2012 due to "bowel perforation."  Dr. Allee lists consequent diagnoses of "post op pneumonia, respiratory failure, ventilator tracheostomy."  The report describes that the "colonoscopy with polypectomy [] caused bowel perforation leading to hemicolectomy."  Dr. Allee describes that, as a result, the Veteran  has "Severe ... Respiratory compromise with neuromuscular debilitation," and notes that the Veteran had lost 81 pounds in the prior year and been unable to regain weight despite appropriate therapy.  A list of pertinent physical findings describes "severe deconditioning," "respiratory difficulty," "chest tubes from recurrent pneumonia/empyema."  A section of the report concerning functional impact describes that the Veteran is "unable to work due to chest tubes, respiratory compromise and weakness."

The Veteran essentially alleges that he is entitled to benefits under 38 U.S.C.A. § 1151 because he has additional disability (including bowel perforation, intestine resection, and resultant respiratory disability) following the treatment at a VA facility in May 2012.  Regarding the four elements needed to establish entitlement to compensation under 38 U.S.C.A. § 1151, it appears to be factually established that the Veteran has suffered additional disability (including intestine resection, and resultant respiratory disability) resulting from a complication (perforation of the bowel) associated with the VA surgical and medical treatment.  The Board notes that these facts appear to be essentially noted by the November 2012 VA medical opinion, clearly describing the perforation as a complication of the May 11, 2012 procedure.  The Board notes that the perforation was described as actually a complication of the VA treatment, regardless of the November 2012 opinion's additional discussion suggesting that certain aspects of such disability may have been likely to eventually develop even had the May 2012 VA medical procedure not been performed.  The Board reads the November 2012 VA medical opinion as describing the May 2012 VA polypectomy as the proximate cause of the bowel perforation as a complication of that procedure.  The Board also finds that this finding is not contradicted by other medical evidence of record.

What remains for consideration is the fourth element of a successful § 1151 claim, i.e., whether the treatment provided by VA involved fault by VA or an event not reasonably foreseeable.  The November 2012 VA opinion indicated there was no medical evidence of VA fault.  The Veteran has contended otherwise and presented a number of arguments seeking to demonstrate that the November 2012 VA opinion is incorrect and that the disability at issue was the result of fault by VA.  As the Board finds that one of the Veteran's arguments in this regard adequately provides a basis for a complete grant of the benefit sought, the Board need not address all of the Veteran's other arguments at this time.

The Veteran has argued that the May 2012 VA treatment was performed without compliance with proper informed consent procedures and that the treatment was not performed in accordance with the description of treatment for which he provided consent.  In this regard, the Veteran's attorney directs the Board's attention (including as described in a June 2016 brief with associated exhibits) to the documentation of the Veteran's informed consent and the documentation of the May 2012 medical procedure in question.  In particular, the Board notes that a VA Form 10-0432 ("Consent for Clinical Treatment/Procedure") signed by the Veteran in May 2012 shows that he provided informed consent to a "colonoscopy with interventions" by "Supervising practitioner: Kastens, Donald J (ATTENDING PHYSICIAN)," and that there would be no "[a]dditional practitioner(s) performing or supervising the treatment/procedure."  The form shows that the "Practitioner obtaining consent" was "Ong, Bryan Allan (FELLOW)," who is not otherwise clearly indicated to have had primary responsibility for the Veteran or to have performed the procedure for which the consent was obtained.

(The Board observes that a second VA Form 10-0432 prepared two minutes later presents the same information in this regard, and lists the Veteran's name in the subject line, but contains a different patient's signature and not the Veteran's signature.)

The Veteran's argument, including as presented in the June 2016 brief, asserts that "Dr. Kastens is on staff with OU Health Center, as well as on staff with VAMC, Oklahoma City as Gastroenterologist.  Veteran and his wife gave consent only to Dr. Kastens, an experienced physician to perform procedure."  However, "[m]uch to veteran's surprise, 'Moderate Sedation Record' ... indicates 'Procedural Team: Madhoun, Le, Sanders, McMillan.'"  The June 2016 brief asserts that "McMillan and Sanders [are] believed to be nurses within operating room during surgery.  Dr. Kastens is not identified as being [in] Operating Room."

The Board finds that the June 2016 brief accurately describes the contents of the cited May 2012 "Moderate Sedation Record."  The Board notes that some of the associated medical records list "Providers: Donald J Kastens, MD, Vu Le, MD (Fellow)"  Aside from this listing in report headings, the documentation provides no significant indication that Dr. Kastens was actually present or directly participated in the colonoscopy polypectomy in question.  The Board finds that the "Moderate Sedation Record" indicates that other personnel, and not Dr. Kastens, performed the procedure.  Notably, a May 11, 2012 "Medical Service Preprocedure Note" (also among the exhibits included with the June 2016 brief) was authored by Dr. Vu Le and identifies himself and "Madhoun" as conducting the procedure.  A concurrence addendum to this report is signed by "Mohammad F. Madhoun," in the capacity of the attending physician.  Notably, this report contains a section asking the author to certify whether "the name of the provider on the consent match[es] that of the provider who will perform the procedure," and Dr. Vu Le left this section incomplete/blank without response.

Subsequent medical records, including as documented amongst the exhibits included with the June 2016 brief, show that on May 14, 2012, the Veteran's wife notified the VA medical facility that the Veteran "was admitted to pauls valley hospital with perforation and had emergency surgery, patient is now recovering at pauls valley hospital."  Shortly thereafter, a "Telephone Note" entered by Dr. Vu Le states: "Patient is doing well and talked to me, he is not upset about the situation."

The testimony of the appellant's wife, including as presented during the May 2016 Board hearing and in the June 2016 brief, asserts that she was in her husband's room 24/7 and Dr. Vu Le never spoke with the Veteran by telephone.  Rather, the Veteran's wife recalls (as presented in the attorney's June 2016 brief) that "she was irate after Vu Le presented himself at St. Anthony's, told her he that he had performed the procedures, but with the second polyp he had trouble getting it and had to get another doctor to assist him....  [He] went on to state that he did not cause the perforation."  The Veteran's step-mother has also provided written testimony (included as an exhibit with the June 2016 brief) corroborating the testimony of the Veteran's wife in these regards.

The Board finds that the evidence shows that in May 2012 a fellow (who does not appear to have been otherwise involved in the procedure) obtained informed consent from the Veteran contemplating a VA colonoscopy and polypectomy to be performed specifically by Dr. Kastens, an experienced specialist, and no other identified participants.  The Board finds that the evidence reflects that the Veteran's May 2012 VA colonoscopy and polypectomy was performed by Dr. Vu Le, a fellow in training, without the participation or presence of Dr. Kastens, with the presence and eventual assistance of Dr. Mohammad F. Madhoun.  The Board finds that the VA medical documentation associated with the procedure shows that Dr. Vu Le declined to certify whether the "the name of the provider on the consent match[es] that of the provider who will perform the procedure," and that significant contemporaneous documentation of the procedure indicates that Dr. Kastens was not present or performing the procedure.  The Board is not persuaded by the appearance of Dr. Kastens' name in the headings of certain reports associated with the treatment that he actually participated in the Veteran's May 2015 colonoscopy and polypectomy, and the Board is not persuaded that the November 2012 VA medical opinion asserting Dr. Kastens' presence at the procedure is correct, as it appears to be informed only by the name being listed in planning and document headings; the November 2012 VA medical opinion does not explain the contrary indications of critical documentation of the procedure including the contemporaneous Sedation Record and the Preprocedure Note.  In accordance with these findings, the Board finds that the Veteran's May 2012 VA colonoscopy and polypectomy was performed outside of the scope of the informed consent provided by the Veteran.  The Board finds that there were more than "[m]inor deviations from the requirements of 38 C.F.R. § 17.32," and the Board is unable to conclude that the deviations were "immaterial under the circumstances" of this case.  See 38 C.F.R. § 3.361(d)(1)(ii).

As the Board concludes that the Veteran has shown that the procedure was furnished without the adequate informed consent contemplated by 38 C.F.R. § 3.361(d)(1)(ii) and 38 C.F.R. § 17.32(c), the Board must accordingly conclude that the fourth element of a successful § 1151 claim, i.e., whether the treatment provided by VA involved fault by VA or an event not reasonably foreseeable, is reasonably established in this case on the basis of the lack of adequate informed consent.  See 38 C.F.R. § 3.361(d)(1)(ii).

The Board further notes that the fourth element of a successful § 1151 claim may be established by a showing that the cause of the Veteran's additional disability associated with the VA treatment was "an event not reasonably foreseeable."  See 38 U.S.C.A. § 1151(a)(1)(B).  The November 2012 VA medical opinion in this case concluded that "[i]t is also unlikely that a practitioner could have foreseen that the patient would have a complication of this nature."  As the Board has found that the Veteran is entitled to the benefit sought on the alternate sufficient basis of the findings discussed above, there is no need to discuss this other theory of entitlement is substantial detail.  The Board notes that the November 2012 VA opinion's statement that the particular complications experienced by the Veteran could not likely be foreseen by a practitioner further supports the Veteran's claim by supporting another basis for the entitlement (a sufficient substitute for finding an instance of fault on the part of VA).  See 38 U.S.C.A. § 1151(a)(1); 38 C.F.R. § 3.361(d).

Resolving reasonable doubt in the Veteran's favor, the Board concludes that the Veteran's bowel perforation and associated complications following VA colonoscopy and polypectomy leading to colon/bowel/intestinal disabilities and resultant respiratory disabilities were complications of a procedure completed without adequately informed consent and were not reasonably foreseeable consequences of the procedure.  Hence, the requirements for substantiating a § 1151 claim are met.  Entitlement to compensation under § 1151 is warranted for damage to the colon (to include perforation of the bowel, the need for surgical resection of the large intestine / hemicolectomy, and associated deconditioning / weight loss) and for the respiratory disability (featuring recurrent pneumonia/empyema, the need for ventilator tracheostomy, and severe respiratory compromise with neuromuscular debilitation).




ORDER

Entitlement to compensation under 38 U.S.C.A. § 1151 for damage to the colon (to include perforation of the bowel, the need for surgical resection of the large intestine / hemicolectomy, and associated deconditioning / weight loss) is granted.

Entitlement to compensation under 38 U.S.C.A. § 1151 for respiratory disability (recurrent pneumonia/empyema, the need for ventilator tracheostomy, and severe respiratory compromise with neuromuscular debilitation) is granted.


REMAND

Regarding the Veteran's claims for TDIU and SMC, such matters are inextricably intertwined with the downstream initial rating assignments forthcoming in the AOJ's implementation of the Board's decision (above) granting entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of bowel perforation and for associated respiratory disability.  Consideration of the TDIU and SMC matters must be deferred pending resolution of those initial rating determinations.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

Accordingly, the case is REMANDED for the following action:

Following the RO's processing the Board's grant of entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of bowel perforation and for associated respiratory disability (discussed above) and any further development indicated, the RO should re-adjudicate the remaining claims on appeal seeking a TDIU rating and SMC in light of the expanded record.  If either remains denied, the RO should issue an appropriate supplemental statement of the case, afford the Veteran and his attorney opportunity to respond, and return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  These claims 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.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).


______________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs