Citation Nr: 1807959	
Decision Date: 02/07/18    Archive Date: 02/20/18

DOCKET NO.  15-22 996	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUE

Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residuals of status post ileocecal resection for an iatrogenic colon perforation.


REPRESENTATION

Appellant represented by:	Massachusetts Department of Veterans Services


ATTORNEY FOR THE BOARD

D. Smart, Associate Counsel






INTRODUCTION

The Veteran had active service from July 1960 to July 1963. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. 

The Veteran testified before a Decision Review Officer (DRO) in March 2015 and a copy of that transcript is of record. 

In an October 2017 decision, the Board remanded the appeal for further development.  

This appeal was processed using the Veterans Benefits Management System (VBMS).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a) (2) (2012).


FINDINGS OF FACT

1.  The Veteran underwent a colonoscopy on April 30, 2013, during which a perforation occurred.  

2.  The evidence of record illustrates that the Veteran's status post ileocecal resection for an iatrogenic colon perforation was incurred as a result of VA medical treatment.

3.  The competent evidence shows that the Veteran's status post ileocecal resection for an iatrogenic colon perforation 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.  The additional disability was a foreseeable risk of the VA colonoscopy.

4.  Prior to the colonoscopy, informed consent was obtained, and a hole or tear of the colon was noted as a foreseeable consequence of the procedure.


CONCLUSION OF LAW

The criteria for compensation under 38 U.S.C. § 1151 for residuals of status post ileocecal resection for an iatrogenic colon perforation have not been met.  38 U.S.C. § 1151 (2012); 38 C.F.R. §§ 3.361, 17.32 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

VA's duty to notify was satisfied by way of the Fully Developed Claim (FDC) application.  See VA Form 21-526EZ; see also 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  

All relevant, obtainable evidence has been associated with the claims file to fulfill VA's duty to assist.  38 U.S.C. § 5103A.

Analysis

The Veteran contends that his status post ileocecal resection for an iatrogenic colon perforation is the result of an April 2013 VA colonoscopy.  

A veteran disabled as a result of VA medical treatment may receive compensation for a qualifying additional disability in the same manner as if such additional disability were service-connected.  38 U.S.C. § 1151.  An additional disability is a qualifying disability if: (1) it was not the result of the veteran's willful misconduct; (2) the disability was caused by VA hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the VA; and, (3) the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination, or the proximate cause of the disability was an event not reasonably foreseeable.  38 U.S.C. § 1151 (a). 
In determining whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after the care or treatment is rendered.  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. 

To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death.  Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause.  Hospital care, medical or surgical treatment, or examination cannot cause the 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 or properly treat the disease proximately caused the continuance or natural progress.  38 C.F.R. § 3.361 (c). 

To satisfy the first prong of proximate causation, it must be shown that the VA 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 determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32.  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.  Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32 (b) of this chapter, as in emergency situations.  38 C.F.R. § 3.361 (d) (1). 

VA regulations provide that 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). 

The second prong of proximate causation requires that the veteran's additional disability or death be an event that was not reasonably foreseeable.  This fact is 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, 3.361(d)(2).

Turning to the evidence of record, the Veteran has an additional disability of status post ileocecal resection for an iatrogenic colon perforation as evidenced by the Veteran's VA treatment records.  

The Board also finds that the Veteran's status post ileocecal resection for an iatrogenic colon perforation was incurred as a result of the VA colonoscopy performed on April 30, 2013.  In an August 2014 opinion, a VA examiner explained that although the perforation was not isolated specifically in the OR, there was enough evidence that some type of perforation happened during the colonoscopy.  

However, the Board finds that the Veteran's status post ileocecal resection for an iatrogenic colon perforation osteomyelitis 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.  The April 2014 VA examiner explained that per the CPRS notes, there was no negligence, delay or carelessness that involved with this case.  The examiner explained that the post procedure problem was noted quickly in the recovery room and the Veteran was seen by surgery and underwent surgery expeditiously.  The examiner also noted that this is an unfortunate complication but it was handled quite well and with an excellent outcome.  

The Board also finds that the perforated colon was a foreseeable risk of the VA colonoscopy.  The August 2014 VA examiner explained that although a perforation is a known complication of any endoscopy, no one can predict which one is the problem.  The examiner explained that this procedure was very appropriate in that it helps health care providers treat cancer and follow the patient with cancer or determine that a polyp is not cancer and avoid surgery.  The examiner also explained that perforation is a known complication which is in the consent form and is discussed with the patient prior to the procedure.  The examiner also stated that it is very unfortunate but occurs about 0.08 percent of the time per the medical literature.  The examiner also noted that the risk of perforation from a colonoscopy is low, but, despite increased experience with the procedure, it remains unchanged over time.  

In regards to informed consent, a review of the Veteran's VA treatment records reveals an April 30, 2013, Consent for Clinical Treatment/Procedure signed by the Veteran and a VA physician.  The document noted the known risks and side effects of the treatment/procedure, which included a hole or tear in the colon.  It was noted that this happens in 1 patient in 1000.  It was noted that surgery may be required to repair the hole.  

Based on the above, the Board finds that although additional disability resulted from the April 30, 2013, VA colonoscopy, no VA negligence or fault was involved, the result was foreseeable, and informed consent was provided and contemplated the resulting complications.  Therefore, the Board finds that the weight of the evidence is against a finding of compensation under the provisions of 38 U.S.C. § 1151.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  38 C.F.R. § 3.102 (2016), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).


ORDER

Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residuals of status post ileocecal resection for an iatrogenic colon perforation is denied.  



____________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs