Citation Nr: 21003571 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 12-00 256 DATE: January 22, 2021 ORDER Compensation for pancreatic aneurysm, either as due to service connection or under the provisions of 38 U.S.C. § 1151, is denied. FINDING OF FACT The Veteran’s pancreatic aneurysm is not secondary to his service-connected diabetes mellitus type 2, related to his in-service herbicide exposure, or proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination CONCLUSION OF LAW The criteria for compensation for pancreatic aneurysm, either as due to service connection or under the provisions of 38 U.S.C. § 1151, are not met. 38 U.S.C. §§ 1110, 1131, 1151, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1969 to February 1971. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2011 rating decision. The Veteran testified at a Board hearing in May 2018. In March 2020, the Board remanded the Veteran’s appeal back to the Agency of Original Jurisdiction (AOJ) for readjudication considering new evidence. Entitlement to compensation for pancreatic aneurysm, either as due to service connection or under the provisions of 38 U.S.C. § 1151, is denied. The Veteran seeks service connection for a disability described as pancreatic aneurysm. He asserts that this disability is secondary to his service-connected diabetes. He also asserts that this disability was overlooked by VA medical personnel. 01/12/2010, VA 21-0820 Reports of General Information. Since the Veteran served in Vietnam, the Board will also consider the extent to which his pancreatic aneurysm is related to his presumed in-service herbicide exposure. The Veteran has indicated that he was diagnosed with an aneurysm in his pancreas in late 2009 at a private treatment facility. 02/16/2010, VA 21-4138 Statement in Support of Claim; 09/25/2012, CAPRI (February 2010 VA treatment note). An October 2010 VA examination explains that the Veteran was diagnosed with a superior mesenteric proximal branch aneurysm, which was treated with embolization, and subsequently developed a pseudoaneurysm in the proximal branch. The examiner added that, at the time of the examination, the Veteran had crampy abdominal pain postprandial, suggestive of vascular insufficiency to the intestinal tract, probably related to a superior mesenteric artery syndrome. 10/26/2010, VA examination. These diagnoses are consistent with a July 2010 private imaging (CT) report. 08/27/2010, Medical Treatment Record - Non-Government Facility, at 1. Regarding the Veteran’s assertion that his aneurysm is secondary to his service-connected diabetes mellitus type 2, in October 2010, a VA examiner opined that it is less likely than not that the superior mesenteric artery aneurysm in this Veteran is secondary to or caused by his diabetes mellitus. In his rationale, the examiner explained that review of the literature shows no association of diabetes with superior mesenteric artery aneurysm, that this is not a recognized complication of diabetes, and that it is a rare condition, one frequently associated with the development of mycotic aneurysm. More recently, in December 2019, a VA specialist reached a similar conclusion. Specifically, the December 2019 VA specialist (Board Certified Gastroenterologist) explained that “there is no indication via the literature or evidence-based medicine that supports diabetes mellitus as a cause of, or aggravation to, development or worsening of pancreatic aneurysm (pancreatic pseudoaneurysm).” 12/10/2019, BVA-General. Regarding the question of whether the Veteran’s pancreatitis is related to his presumed herbicide exposure in service, the December 2019 VA specialist explained that there is no documentation in the literature to suggest that herbicide exposure is a cause for this entity, adding that pancreatic pseudoaneurysm, nor any pancreatic vascular condition, has ever come to the attention of the National Academy of Sciences Institute of Medicine, and that there is no evidence that this had been studied as a possible consequence of herbicide exposure. 12/10/2019, BVA-General. Based on these opinions, which are supported by a medical rationale, the Board finds that the preponderance of the competent and probative evidence is against a finding that the Veteran’s disability is secondary to his service-connected diabetes or his presumed in-service herbicide exposure. The Board places much weight on the VA opinion described above as they showed knowledge/review of review pieces of evidence, to include imaging studies, and provided logical rationales to support the opinion given. These competent and probative opinion, however, tend to weigh against a finding of secondary service connection. The Board acknowledges the Veteran’s assertion that his condition is secondary to his diabetes, to include his assertion that private treatment providers have suggested that such a causal relationship is possible or likely. Unfortunately, the record does not tend to show competent evidence to rebut the VA opinions referenced above. Additionally, the Veteran lacks the knowledge and/or training to provide an opinion regarding etiology so his opinion is not competent and lacks weight in this regard. As explained above, the VA opinions, which carry a high probative value, outweigh and weigh against the Veteran’s claim of service connection. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. *** The Board now turns to the Veteran’s assertion that VA failed to diagnose his pancreatic aneurysm. Under 38 U.S.C. § 1151, compensation shall be awarded for a qualifying additional disability or a qualifying death of a Veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the Veteran’s willful misconduct and the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151. To determine whether a Veteran has an additional disability, VA compares the 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). Consent may be express (given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b). 38 C.F.R. § 3.361(d)(1)(ii). 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. 38 C.F.R. § 3.361(d)(2). The Veteran has indicated that, prior to being diagnosed with a pancreatic aneurysm, he had been receiving VA treatment for his diabetes, for four to five years. He also indicated that his private providers described the condition as dangerous and explained that he had probably had the aneurysm for years. The Veteran believes that, had VA provided proper care, his pancreatic aneurysm would have been discovered earlier, with better results. 01/19/2010, VA 21-4138 Statement in Support of Claim; 02/16/2010, VA 21-4138 Statement in Support of Claim (dated January 28, 2010). This is similar to the contentions made by Veteran’s representative that VA missed or misdiagnosed the severity of the Veteran’s aneurysm requiring him to get emergency treatment outside of VA. 12/09/2020 Appellate Brief. In February 2011, VA obtained an independent medical opinion. In it, the author, a physician, concluded that VA medical care did not result in any additional disability for the Veteran and that the risk of pancreatic aneurysm in a, asymptomatic, non-smoker at the age of 60, as was the case of the Veteran, is so low that a reasonable health care provider would not have considered getting a routine CT scan to screen for abdominal aneurysm. In his rationale, the author noted that, on November 30, 2009, during a VA treatment visit, the Veteran reported having gone to a private emergency room for elevated pressure and groin pain, where the Veteran was given some antibiotics and was recommended for a follow-up CT urogram. The Veteran was offered a CT urogram at the Salisbury VAMC, but he preferred to get it done in a private hospital. Thereafter, in February 2010, during another VA treatment visit, the Veteran reported that he had gone to a private facility for emergency treatment of abdominal pain, when he was found to have a pancreatic aneurysm. In May 2020, he reported having undergone percutaneous repair for pancreatic aneurysm from gastro-duodenal artery, at a private facility in April 2010. Furthermore, the author noted that VA treatment records were silent for complaints of, or treatment for, abdominal pain. 02/22/2011, Medical Treatment Record - Non-Government Facility. In January 2017, a VA examiner reached a similar conclusion. Specifically, the examiner indicated that, “based on a review of the medical record, specifically the veterans complaints as noted and evaluation at that time, [he did] not agree with the contention that there was negligence and that the veteran should have had a CT given the review of medical records, veterans symptoms and exam findings.” 01/27/2017, C&P Exam. The Veteran has indicated that he complained about abdominal pain to VA treatment providers shortly before being diagnosed with pancreatic aneurysm at private treatment facility. 02/16/2010, VA 21-4138 Statement in Support of Claim (dated January 2, 2012). This statement, however, is not supported by VA treatment records, which, as mentioned, are silent for abdominal pain. Furthermore, the evidence of record, to include a statement from the Veteran, indicates that, at the time of the relevant events, the Veteran’s VA treatment was focused on his diabetes, whereas, for other issues, to include gastroenterology and urology, he preferred private treatment providers. 02/09/2010, CAPRI, at 6; 02/16/2010 VA 21-4138 Statement in Support of Claim (dated January 28, 2010). Based on this evidence, regarding the question of whether the Veteran reported symptoms consistent with pancreatic aneurysm, the Board finds that the Veteran’s VA treatment records are more probative and weighted than the Veteran’s recollection of his treatment visits, as these records were produced contemporaneously and for treatment purposes. The relevant medical and lay evidence does not tend to show that the Veteran reported symptoms consistent with pancreatic aneurysm to his VA treatment providers, the Board finds that compensation under 38 U.S.C. § 1151 is not warranted for pancreatic aneurysm. Additionally, two medical opinions from 2011 and 2017 are probative and weight against a finding that any additional disability experience by the Veteran is due to 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. The Board place high value on these opinions relevant facts, such as the Veteran’s treatment reports, and his contentions, such misdiagnosis, were considered. As the preponderance of the evidence weighs against the claim, compensation based on the provisions of 38 U.S.C. § 1151 is denied. 38 U.S.C. § 5107(b). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. López 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.