Citation Nr: 18153667 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 08-15 119 DATE: November 28, 2018 ORDER The claim for compensation under 38 U.S.C. § 1151 for additional disability associated with acute pancreatitis as a result of a colonoscopy performed at a Department of Veterans Affairs (VA) Medical Center (VAMC) in February 2007 is granted. FINDING OF FACT The probative weight of the positive and negative competent is in relative balance as to whether the Veteran sustained additional disability associated with acute pancreatis due to negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing a colonoscopy in February 2007. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for compensation under 38 U.S.C. § 1151 for additional disability associated with acute pancreatitis as a result of a colonoscopy performed at a VAMC) in February 2007 have been satisfied. 38 U.S.C. §§ 1151, 5103, 5103A (2012); 38 C.F.R. §§ 3.102, 3.154, 3.159, 3.361 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION I. Legal Criteria When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. §5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Title 38, United States Code § 1151 provides compensation in situations in which a claimant suffers an injury or an aggravation of an injury resulting in additional disability or death by reason of VA hospitalization, or medical or surgical treatment, and the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the medical or surgical treatment, or the proximate cause of additional disability or death was an event which was not reasonably foreseeable. To determine whether a Veteran has an additional disability, VA compares the Veteran’s condition immediately before the beginning of the medical treatment upon which the claim is based to his or her condition after such treatment has stopped. 38 C.F.R. § 3.361(b). To establish that VA treatment caused additional disability, the evidence must show that the medical treatment resulted in the additional disability. Merely showing that a Veteran received treatment and that the Veteran has an additional disability, however, does not establish cause. 38 C.F.R. § 3.361(c)(1). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 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 must be shown that the medical 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 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), (d)(1). Whether the proximate cause of a Veteran’s additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 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. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32 of this chapter. Schertz v. Shinseki, 26 Vet. App. 362 (2013); 38 C.F.R. § 3.361(d)(2). II. Analysis On February 23, 2007, the Veteran underwent a routine colonoscopy at a VAMC. He was advised of the following potential risks associated with the procedure: “bleeding that may require blood transfusions, perforation requiring surgery, infection, cardiorespiratory problems and adverse drug reactions.” The colonoscopy report indicates that the Veteran “tolerated the procedure without difficulty.” He contends that he experienced abdominal pain immediately after the procedure. The Veteran was discharged. Later that night, he called the hospital and complained of severe upper abdominal pain, radiating to his back. He was advised to seek urgent medical attention at the nearest emergency room. The Veteran did not go to the emergency room that day because he did not have anyone to drive him and he could not afford to take an ambulance. On February 24, 2007, the Veteran called the VAMC again and stated that he still was experiencing severe pain. He was advised to go to the VAMC emergency room. The Veteran stated that he would be able to arrive at the hospital in two hours. On physical examination at the emergency room, the Veteran complained of abdominal bloating and mild peri-umbilical pain. He denied fevers, chills, and diarrhea. The Veteran reported that he had been active all day and his symptoms have not limited his activity. He reported that his pain was a “5” out of “10.” The assessment was abdominal bloating and discomfort, likely related to air instilled during the colonoscopy the previous day. There were no clinical or radiographic signs of perforation. The Veteran was discharged. Later that evening, the Veteran called the hospital and reported that he had not been able to pass gas and his pain was a “9” out of “10.” The Veteran was advised to return to the emergency room. The Veteran was reluctant to return to the emergency room and stated he would try walking and drinking hot beverages for an hour. The Veteran did not report to the hospital that day. On February 25, 2007, the Veteran called the VAMC again and reported that he had increased abdominal pain with nausea, vomiting, and severe diaphoresis. He returned to the emergency room and was admitted. On admission, he reported chills, worsening abdominal pain and distention, and worsening diaphoresis. The assessment was “abdominal pain, distention with peritoneal signs concerning for peritonitis.” A chest x-ray noted that there was a “small patchy density in the right lower lobe which may represent atelectasis with follow up recommended.” The Veteran then underwent an exploratory laparotomy with loop ileostomy procedure. A February 25, 2007 operation report notes that the Veteran did not have free air on his abdominal films, but he did have evidence of an acute abdomen and was prepped for surgery. Surgery notes include the following: The most notable thing was that he had a large amount of fluid and necrotic area in his lesser sac. He appeared to have the most in his transverse colon mesentery and he actually had air in his transverse colon mesentery. We thoroughly mobilized and explored all of his colon, took down his splenic flexure and his hepatic flexure. He also had retroperitoneal hematoma and contamination all the way down the right gutter into the pelvis although he had no evidence of rectal injury and no evidence of sigmoid injury, the left colon looked normal. It really was the transverse, mesocolon that had what appeared to be contamination of the bowel. Although completely normal, we put the bowel under water and tried to express air but we were unable to find any areas at that point either. After a thorough exploration, we looked at the stomach and the duodenum. There was no evidence of perforation there, we ran the entire small bowel. Therefore, we then performed a loop ileostomy in the right upper quadrant very much the terminal ileum brought up through a cruciate incision in the anterior/posterior rectus sheath, the muscle being split. In VA treatment notes dated February 26, 2007, Dr. A.F. indicated that no perforation was found during the Veteran’s laparotomy with loop ileostomy procedure. Dr. A.F. further stated: [The Veteran] appears to have acute pancreatitis with multi-organ failure. Whether the pancreatitis is related to the endoscopic procedure or not is uncertain; the elevated bilirubin and liver chemistries are suggestive of a biliary source. Acute pancreatitis is an exceedingly rare complication of colonoscopy, with only 2 cases published in the literature. On February 27, 2007, the Veteran’s attending surgeon noted: “Colon perforation after colonoscopy, retroperitoneal contamination with subsequent pancreatitis complicating the picture.” A March 2, 2007 VA treatment notes show that the Veteran developed sepsis after his exploratory laparotomy and was on a ventilator until March 1, 2007. In June 2007, the Veteran was afforded a VA examination of his intestines. The examiner opined as follow: [The Veteran’s] bowel perforation is most likely caused by or a result of his colonoscopy. His current state of debilitation is most likely caused by or a result of his acute illness stemming from his bowel perforation. Worsening of his disability is less likely as not caused by or a result of his medical therapy and rehabilitation after the diagnosis of bowel perforation. There has been conflicting medical evidence as to whether the Veteran’s colon was actually perforated during his routine colonoscopy. Many treatment records following the colonoscopy note that the Veteran had a laparotomy with loop ileostomy procedure to correct a colon perforation. However, as noted above, the February 25, 2007 surgical report reflects that there was no perforation found. Further, July 2009 treatment records reflect that after a screening colonoscopy in February 2007, the Veteran was hospitalized with severe pancreatitis, but there was no colon perforation found. June 2009 VA treatment records show that following the colonoscopy, the Veteran had many hospitalizations for severe pancreatitis. He continued to have an open wound on his abdomen for years following his surgery. The Veteran was afforded a VA examination in connection with his claim in June 2011. The examiner opined that the Veteran’s disability was not caused by carelessness, negligence, lack of proper skill, error in judgment, or an event not reasonably foreseeable. The examiner’s rationale was that the Veteran was informed that colon perforation with infection was a potential risk of a colonoscopy procedure and his care post-treatment was appropriate. The examiner also noted that there was no evidence of any aggravation related to his service-connected diabetes mellitus. The Veteran has contended both that VA was negligent in administering the colonoscopy, as well as in providing treatment following the procedure. In an April 2012 statement, the Veteran noted that he understood that perforation of the colon was a risk associated with the colonoscopy procedure. He claimed that he was prematurely sent home from the emergency room on February 24, 2007, without an adequate examination. The Veteran contended that his additional problems were a result of the delay in the emergency surgery that took place on February 25, 2007. In his December 2009 hearing before the Board, the Veteran’s representative claimed that they disagreed that bowel perforation is a normal risk for a colonoscopy. The Veteran’s representative also stated that they found no evidence in the colonoscopy procedure report in which the bowel was perforated. To address the contentions of the Veteran and his representative, the Board of Veterans’ Appeal (Board) requested a medical opinion in February 2014 from the Veterans Health Administration (VHA) to determine whether the Veteran had a bowel perforation and whether his acute pancreatitis was a result of his colonoscopy and/or subsequent treatment. The VHA clinician determined that the colonoscopy did not result in perforation of the colon or small bowel, and the Veteran’s abdominal pain and illness was due to acute pancreatitis. The VHA clinician opined that the Veteran’s acute pancreatitis was not related to his colonoscopy, but he did not provide a rationale or explanation as to how he made such determination. He also did not answer a number of questions the Board asked. In November 2014, the Board requested an independent medical expert opinion (IME) to determine whether the Veteran had a bowel perforation and whether his acute pancreatitis was a result of his colonoscopy and/or subsequent treatment. However this opinion was inadequate because the medical expert who rendered the opinion failed to use the appropriate legal standard when answering the questions posed by the Board. Specifically, the Board requested that the expert. determine whether the Veteran’s subsequent gastrointestinal disorders were as likely as not (a 50-50 probability) a result of the Veteran’s colonoscopy and/or subsequent treatment at the VAMC. The expert failed to use the appropriate legal standard and stated that he could not 100% guarantee that the Veteran’s pancreatitis was not caused by the procedure. As the February 2014 VHA clinician did not fully explain how he determined that the Veteran’s colonoscopy did not result in acute pancreatitis or perforation of the colon or small bowel and the January 2015 IME was inadequate for claims purposes, the Board sought another IME opinion in August 2017. The requested opinion completed in November 2017, while finding that “it did not appear” that the Veteran had a perforation of the intestine as a result of the colonoscopy in question, included the following positive opinion with respect to the Veteran’s appeal: [The Veteran] had made two triage phone calls prior to presenting 24 hours after his colonoscopy to the emergency room. The [Veteran] communicated his difficulty in transportation. Given the persistence of [the Veteran’s] symptoms, and his transportation problems, it would have been prudent to admit [the Veteran] for observation and perform serial abdominal exams. If this was not possible, basic laboratory values such as a CMP and CBC and/or a CT scan of the abdomen and pelvis could have been performed to rule out other complications that can occur following a colonoscopy other than intestinal perforation. This would have prevented the [Veteran] presenting in a delayed fashion 24 hours later with profound dehydration and advanced pancreatitis. This appears to be an error in judgment to have sent the [Veteran] home without additional workup or admission to the hospital. [An] [i]ntestinal perforation may have been ruled out by the acute abdominal series but this is not the only complication [] that can occur after [a] colonoscopy. In short, the Board finds that the positive portion of the November 2017 IME opinion set forth above places the probative weight of the positive and negative competent evidence in relative balance as to whether the Veteran sustained additional disability associated with acute pancreatitis due to negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing a colonoscopy in February 2007. As such, and after resolving all reasonable doubt in this regard in favor of the Veteran, the undersigned finds that the claim for compensation provided by 38 U.S.C. § 1151 for additional disability associated with acute pancreatitis may be granted. 38 U.S.C. §5107(b); 38 C.F.R. § 3.102; Gilbert, supra. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel