Citation Nr: 19194307 Decision Date: 12/17/19 Archive Date: 12/16/19 DOCKET NO. 10-41 610 DATE: December 17, 2019 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for necrotizing pancreatitis as a result of VA treatment is granted. Entitlement to service connection for a psychiatric disorder, to include an anxiety or depressive disorder is granted. REMANDED Entitlement to service connection for a disorder manifested by a weakening of the muscles and loss of muscular control, also claimed as myotonic dystrophy is remanded. Entitlement to service connection for a gastrointestinal disorder is remanded. Entitlement to service connection for a dermatological or allergic disorder characterized as bilateral hand dermatitis, bilateral hand swelling, and skin rashes, is remanded. Entitlement to service connection for a neurological disorder to include any such disorder manifested by essential tremors, paralysis agitans, distal polyneuropathy, or a combination thereof, is remanded. FINDINGS OF FACT 1. The Veteran underwent an endoscopic ultrasound (EUS) performed by VA medical personnel. During the procedure a bile duct was punctured, causing a bile leak. 2. To treat the bile leak, the Veteran underwent an endoscopic retrograde cholangiopancreatography (ERCP) procedure. He developed necrotizing pancreatitis as a complication of the ERCP procedure. 3. A bile duct leak is not a foreseeable complication of an EUS procedure. 4. The bile duct leak is the proximate cause of the ERCP procedure, and the subsequent complication of necrotizing pancreatitis. 5. The evidence is at least in equipoise as to whether the Veteran’s psychiatric disorder is proximately due to his necrotizing pancreatitis. CONCLUSIONS OF LAW 1. The criteria for compensation under 38 U.S.C. § 1151 for necrotizing pancreatitis have been met. 38 U.S.C. §§ 1151, 5103, 5103A; 38 C.F.R. §§ 3.154, 3.159, 3.361. 2. The criteria for service connection for a psychiatric disorder as secondary to necrotizing pancreatitis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1978 to September 1982. These matters come to the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Regional Office (RO) of the Department of Veterans Affairs (VA) in October 2009, September 2010, and October 2013. The October 2009 rating decision denied service connection for a disorder manifested by a weakening of the muscles and loss of muscular control, and for a psychiatric disorder. The September 2010 rating decision denied service connection for a gastrointestinal disorder, a neurological disorder, and a dermatological or allergic disorder. Finally, the October 2013 rating decision considered entitlement to compensation under 38 U.S.C. § 1151. The Veteran presented testimony at a Board hearing in March 2016. A transcript of the hearing is associated with the Veteran’s claims folder. This case was previously before the Board in July 2016 and August 2017, on which occasions the claims were remanded. 1. Entitlement to compensation under 38 U.S.C. § 1151 for necrotizing pancreatitis as a result of VA treatment is granted. The Veteran asserts that he is entitled to compensation under 38 U.S.C. § 1151 for necrotizing pancreatitis that resulted as a complication of VA treatment for a cystic lesion. In February 2008 a CT scan revealed a cystic lesion near the head of the Veteran’s pancreas. (7/15/2016, CAPRI, p. 251). Subsequently, he was scheduled for an EUS. During the procedure, a fine needle aspiration (FNA) of the cystic lesion was attempted. However, in attempting the FNA, VA medical personnel punctured a bile duct. (7/15/2016, CAPRI, p. 243-44). As a result, the procedure was aborted, and the Veteran was admitted to the hospital for IV antibiotics and observation. Subsequently, the Veteran developed peritonitis as a result of the bile duct puncture. (7/15/2016, CAPRI, p. 171). To treat peritonitis, VA medical personnel scheduled him for an ERCP procedure. During the ERCP, VA medical personnel identified the punctured bile duct, but were unsuccessful in attempts to drain the leaking bile. (7/15/2016, CAPRI, p. 167). After the failed ERCP, VA medical personnel ordered CT scans, which indicated that fluid was collecting below the liver, and that the pancreatic head was inflamed. VA medical personnel diagnosed pancreatitis and progressive systemic inflammatory response. Shortly thereafter, evidence of necrotizing pancreatitis was identified. (7/15/2016, CAPRI, p. 3). A veteran may be awarded compensation for an additional disability, not the result of willful misconduct, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA, either by a VA employee or in a VA facility as defined in 38 U.S.C. § 1701(3)(A), and the proximate cause of the disability was (1) 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 (2) an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361(c), (d)(1), (d)(2). To determine whether a veteran has an additional disability, VA compares the veteran’s condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination to the veteran’s condition after such care, treatment, or examination has stopped. 38 C.F.R. § 3.361(b). VA considers each involved body part or system separately. Id. If an additional disability is shown, actual causation is required. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the additional disability or death. 38 C.F.R. § 3.361(c). Merely showing that a veteran received care, treatment, or examination and that a veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1). To establish that the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, the claimant must show either (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the care, treatment, or examination without the Veteran’s informed consent. 38 C.F.R. § 3.361(d)(1). Alternatively, to establish that the proximate cause of a disability was an event that was not reasonably foreseeable, the evidence must demonstrate that a reasonable health care provider could not have foreseen the event. The event does not have to be “completely unforeseeable or unimaginable” but it must “be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided.” 38 C.F.R. § 3.361(d)(1). 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. See 38 C.F.R. § 3.361(d)(1)(ii). Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient of the proposed diagnostic procedure or course of treatment. 38 C.F.R. § 17.32(c). The informed consent must be appropriately documented in the health record and a signature is required for all treatments and procedures that require the use of sedation, anesthesia, or narcotic analgesia, that are considered to produce significant discomfort to the patient, or that require injections of any substance into a space of body cavity. 38 C.F.R. § 17.32(d)(1). In the case at hand, the Board notes that the Veteran developed necrotizing pancreatitis following an ERCP procedure performed by VA medical personnel. Thus, the threshold requirement of an additional disability is satisfied. Having established an additional disability, the remaining question is whether VA medical treatment is the actual cause of necrotizing pancreatitis, and whether the proximate cause of necrotizing pancreatitis was (1) 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 (2) an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361(c), (d)(1), (d)(2). The Veteran asserts that necrotizing pancreatitis was an unforeseeable complication of VA medical treatment for a cystic lesion. However, while VA examiners concede that necrotizing pancreatitis was a complication of the ERCP procedure, they have consistently opined that necrotizing pancreatitis is a known complication of ERCP, and therefore, a reasonably foreseeable complication. (10/30/2017, VA Examination, p. 3). The Board accepts the VA examiners’ aforementioned finding that pancreatitis is a foreseeable complication of the ERCP procedure. However, this is not the determinative issue in the present case, as the punctured bile duct that necessitated the ERCP procedure was a direct consequence of the previous EUS-FNA procedure. As such, the Board finds that there is direct proximate causation between the punctured bile duct, the ERCP, and necrotizing pancreatitis. Therefore, the Board concludes that the determinative issue in the present case is whether a punctured bile duct is a reasonably foreseeable complication of a EUS-FNA procedure. In May 2019 the Board referred the case to Columbia Medical University for a specialist opinion. In August 2019 an examiner from Columbia opined that a bile leak is not a foreseeable complication of an EUS procedure and would not have been discussed as part of a standard consent procedure. The examiner indicated that the bile leak likely led to peritonitis, and that the ERCP was an appropriate procedure to address the “unforeseen complication.” The examiner concluded that “[i]t is most likely that the Veteran suffered peritonitis secondary to bile leak and subsequently pancreatitis as a consequence of the ERCP performed to treat the bile leak. This pancreatitis led to necrosis and walled off necrotizing fluid collections.” (8/27/2019, Other, p. 1-2). In sum, the Board finds that the Veteran underwent an EUS procedure. This procedure failed, resulting in an unforeseeable complication of a bile leak. To treat the bile leak, the Veteran underwent an ERCP procedure which caused an additional disability of necrotizing pancreatitis. The Board concludes that VA treatment was the actual cause of necrotizing pancreatitis, as the disease was a complication of a procedure performed by VA medical personnel. Moreover, the Board concludes that the EUS procedure is the proximate cause of necrotizing pancreatitis, as but for the EUS procedure the Veteran would not have developed a bile leak, would not have undergone the ERCP procedure, and would not have subsequently developed necrotizing pancreatitis. Again, while pancreatitis itself may not be an unforseesable complication, the bile leak that led to such pancreatitis was unforeseen. Therefore, entitlement to compensation under 38 U.S.C. § 1151 for necrotizing pancreatitis as a result of VA treatment is warranted. 2. Entitlement to service connection for a psychiatric disorder, to include an anxiety or depressive disorder is granted. The Veteran asserts that he is entitled to service connection for a psychiatric disorder, to include an anxiety or depressive disorder. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In February 1997, VA Office of General Counsel (General Counsel) considered the issue of whether compensation may be paid pursuant to 38 C.F.R. § 3.310, for a disability which is proximately due to or the result of a disability for which compensation is payable under 38 U.S.C. § 1151. The General Counsel concluded that: [C]ompensation may be paid for any disability which results from a section-1151 injury or disease, including any disability in the nature of a “proximate result” or “secondary condition.” We emphasize, however, that neither 38 U.S.C. § 1151 nor 38 C.F.R. § 3.310 authorize an award of service connection for the original section-1151 disease or injury or for any proximate results or secondary conditions of such disease or injury. Rather, section 1151 merely authorizes payment of compensation “as if” the section-1151 disability and any secondary conditions resulting from that disability, were service connected. VAOPGCPREC 8-97. The Veteran was afforded a VA Mental Disorders examination in August 2016 which confirmed current diagnoses of “Other Specified Depressive Disorder” and “Other Specified Anxiety Disorder.” (8/3/2016, C&P Exam, p. 1). As such, the Board finds that there is competent evidence of a current disability. Further, as noted in the previous section, the Board has found that entitlement to compensation under 38 U.S.C. § 1151 for necrotizing pancreatitis is warranted. Therefore, the remaining question is whether the Veteran’s current psychiatric disorders are either caused, or aggravated, by necrotizing pancreatitis. In this regard, in a November 2016 VA medical opinion a VA examiner opined that the Veteran’s psychiatric disorders are related to his chronic pancreatitis. The examiner indicated that the Veteran was “clear during the exam that his mental health difficulties are caused by his pancreatitis.” (11/2/2016, C&P Exam, p. 1-2). Similarly, in a September 2017 VA medical opinion a VA examiner opined that “[i]t is most likely that the [V]eteran’s anxiety and depression . . . [is] due to chronic pancreatitis.” (9/27/2017, VA Examination, p. 2-3). Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current psychiatric disorders are proximately due to necrotizing pancreatitis. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that he is entitled to compensation for Other Specified Depressive Disorder and Other Specified Anxiety Disorder as proximately due to necrotizing pancreatitis. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a disorder manifested by a weakening of the muscles and loss of muscular control, also claimed as myotonic dystrophy is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of entitlement to service connection for a disorder manifested by a weakening of the muscles and loss of muscular control. In this regard, the August 2017 Board directed the RO to provide a medical opinion on whether a muscular disorder, to include any disorder manifested by weakening of the muscles and loss of muscular control, was at least as likely as not incurred in active service, to include as by exposure to toxic chemicals. (8/9/2017, Remand BVA, p. 11). In a September 2017 VA opinion, a VA examiner opined that the Veteran did not have a diagnosis of myotonic dystrophy. The Board accepts the examiner’s finding, but concludes that the examiner failed to comply with the August 2017 remand directives by not opining on whether the Veteran has a current diagnosis of a disorder, other than myotonic dystrophy, that may manifest with weakening of the muscles and loss of muscular control. (9/27/2017, VA Examination, p. 9). In this regard, the examination referenced findings of essential tremor and polyneuropathy but did not address whether these disorders result in symptoms of weakening of the muscles or loss of muscular control, or whether any other disorder with such effects is present. As there has not been substantial compliance with the Board’s previous remand directives, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, as the Board has granted entitlement to compensation under 38 U.S.C. § 1151 for necrotizing pancreatitis, on remand the examiner should opine on whether a disorder manifested by a weakening of the muscles and loss of muscular control is at least as likely as not (1) proximately due to necrotizing pancreatitis, or (2) aggravated beyond its natural progression by necrotizing pancreatitis. 2. Entitlement to service connection for a gastrointestinal disorder is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of entitlement to service connection for a gastrointestinal disorder. In this regard, the August 2017 Board opinion directed the RO to provide a medical opinion on whether there are any gastrointestinal disorders at any time during the claim period that are at least as likely as not related to active service, to include chemical exposures therein. The Board specifically directed the RO to ensure the examiner remarked on the Veteran’s conceded exposure to JP-4, leaded gasoline, diesel fuel, and trichloroethylene. (8/9/2017, Remand BVA, p. 9-10). In an October 2017 VA medical opinion, a VA examiner opined that the Veteran’s pancreatic cryst and irritable bowel syndrome were not caused by jet fuel (JP-4) or printer ink exposure (trichloroethylene). The examiner did not offer an opinion on whether the Veteran’s gastrointestinal disorders are related to exposure to leaded gasoline or diesel fuel. (10/30/2017, C&P Exam, p. 3). As there has not been substantial compliance with the Board’s previous remand directives, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Entitlement to service connection for a dermatological or allergic disorder characterized as bilateral hand dermatitis, bilateral hand swelling, and skin rashes, is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of entitlement to service connection for a dermatological or allergic disorder. In this regard, the August 2017 Board opinion directed the RO to provide a medical opinion on whether there are any dermatological or allergic disorders at any time during the claim period that are at least as likely as not related to active service, to include chemical exposures therein. The Board specifically directed the RO to ensure the examiner remarked on the Veteran’s conceded exposure to JP-4, leaded gasoline, diesel fuel, and trichloroethylene. (8/9/2017, Remand BVA, p. 13-14). In a September 2017 VA medical opinion, a VA examiner opined that she did “not find any dermatologic or allergic disorders show not treated at any time during the claim. From September 1998 – present that are related to active service.” (9/19/2017, C&P Exam, p. 1). It is not clear if the examiner is asserting that the Veteran has not had a dermatologic or allergic disorder during the pendency of the appeal, or if the examiner is asserting that the Veteran has a dermatologic or allergic disorder, but that the disorder is unrelated to service. In either regard, the opinion would be inadequate, as the Veteran’s VA medical records confirm diagnoses of dermatologic disorders and the examiner failed to remark on exposure to JP-4, leaded gasoline, diesel fuel, and trichloroethylene as directed by the Board. As there has not been substantial compliance with the Board’s previous remand directives, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. Entitlement to service connection for a neurological disorder to include any such disorder manifested by essential tremors, paralysis agitans, distal polyneuropathy, or a combination thereof, is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of entitlement to service connection for a neurological disorder to include any such disorder manifested by essential tremors, paralysis agitans, distal polyneuropathy, or a combination thereof. In this regard, the August 2017 Board opinion found that an August 2016 examination and subsequent addendum opinion were inadequate as they failed to address the Veteran’s clinical presentation of essential tremor to his father’s clinical presentation. (8/9/2017, Remand BVA, p. 5). In a September 2017 VA medical opinion, a VA examiner opined that the Veteran’s essential tremor is “more likely than not familial” as the Veteran’s father had a similar tremor. In rendering this opinion, the examiner did not address the clinical presentation of the Veteran’s essential tremor as compared to that of his father’s. (9/27/2017, C&P Exam, p. 10). As there has not been substantial compliance with the Board’s previous remand directives, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from August 2017 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any disorder manifested by a weakening of the muscles and loss of muscular control. After identifying all relevant diagnoses, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including exposure to JP-4, leaded gasoline, diesel fuel, and trichloroethylene. Additionally, the examiner must opine whether any disorder manifested by a weakening of the muscles and loss of muscular control is at least as likely as not (1) proximately due to necrotizing pancreatitis, or (2) has been aggravated beyond its natural progression by necrotizing pancreatitis. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any gastrointestinal disorder, to include IBS. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including exposure to leaded gasoline or diesel fuel. Additionally, the examiner must opine whether any gastrointestinal disorder, to include IBS, is at least as likely as not (1) proximately due to necrotizing pancreatitis, or (2) has been aggravated beyond its natural progression by necrotizing pancreatitis. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any dermatological or allergic disorder. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including exposure to JP-4, leaded gasoline, diesel fuel, and trichloroethylene. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any neurological disorder, to include any such disorder manifested by essential tremors, paralysis agitans, or distal polyneuropathy. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including exposure to JP-4, leaded gasoline, diesel fuel, and trichloroethylene. In rendering an opinion, the examiner must specifically address the clinical presentation of the Veteran’s essential tremor as compared to that of his father. 6. The examiners are reminded that they must consider all lay and medical evidence, including the September 2009 OCCEMED opinion on by M.B.B. MD, MPH, the medical treatises submitted in October 2010 regarding chemical exposures, and evidence from the Subcommittee on Permissible Exposure Levels for Medical Forces submitted in December 2010. Consider also all previous VA examinations addressing his claims. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Glenn, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.