Citation Nr: 21004414 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 96-49 197 DATE: January 27, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for a diverticular bleed is denied. Entitlement to compensation under 38 U.S.C. § 1151 for a left knee disability is denied. FINDINGS OF FACT 1. The diverticular bleed was not sustained in connection with VA hospital care, medical or surgical treatment, or examination. 2. The preponderance of the evidence is against finding that the diverticular bleed was caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA during treatment at a VA facility. 3. The Veteran sustained a left knee meniscal tear and knee strain in a fall while admitted to a VA hospital; however, the knee injury was not sustained in connection with VA hospital care, medical or surgical treatment, or examination. 4. The preponderance of the evidence is against finding that the left knee injury was caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA during treatment at a VA facility. CONCLUSIONS OF LAW 1. The criteria for compensation under 38 U.S.C. § 1151 for diverticular bleed have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. 2. The criteria for compensation under 38 U.S.C. § 1151 for a left knee disability have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1951 to January 1953. The Board remanded the issues in May 2014, August 2016, April 2018, and May 2020 to obtain all relevant treatment records, including informed consent documents. In November 2020, the AOJ notified the Veteran that the informed consent forms could not be located and were therefore unavailable for review. The Board therefore finds there has been substantial compliance with the remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998). 1151 Eligibility To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Section 1151 compensation is awarded for qualifying additional disability in the same manner as if such additional disability were service-connected. The purpose of the statute is to award benefits to those Veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151(a). For purposes of establishing entitlement to section 1151 benefits, a disability is a qualifying additional disability if it: (1) was not the result of the Veteran’s willful misconduct; and (2) the disability 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 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(a); 38 C.F.R. § 3.361(a)-(d). 1. Compensation under 38 U.S.C. § 1151 for a diverticular bleed. 2. Compensation under 38 U.S.C. § 1151 for a left knee disability. The Veteran contends that a nuclear stress test conducted at VA in September 2010 caused a diverticular bleed. He asserts that during the procedure, he felt a sharp pain in lower abdomen, which VA medical staff failed to properly treat. That evening, he saw blood in the toilet bowl and was told to return to the emergency department. He also contends that he injured his left knee in the VA hospital during his admission for the diverticular bleed after he was transferred from the third floor to the fourth floor, and that necessary precautions were not taken to prevent his fall. See the December 2010, March and June 2012, January 2017 statements. The medical evidence clear shows that the Veteran had a nuclear stress test at VA on September 7, 2010. The Board acknowledges that the informed consent form was not incorporated into the claims file. After four remands by the Board between May 2014 and May 2020, informed consent documents were not located. In November 2020, the AOJ notified the Veteran that the informed consent forms could not be located and were therefore unavailable for review. The Veteran was admitted to a VA hospital medical intensive care unit (MICU) with a diverticular bleed the next day, on September 8, 2010. A gastroenterology consultation record indicates that the Veteran denied having a prior episode of rectal bleeding. He was also noted to have declined a screening colonoscopy in the past, but had been noted to have extensive diverticulosis on abdominal imaging. An esophagogastroduodenoscopy (EGD) did not demonstrate any source of bleeding. A colonoscopy showed sigmoid diverticulosis with clots in multiple diverticuli, but no active bleeding. The Veteran was transfused with three units of packed red blood cells (PRBCs) and determined to be stable with plans for discharge on September 10, 2010. However, before he was discharged, the Veteran twisted his left knee. An MRI showed a medial meniscus tear of the posterior horn and degenerative changes of the lateral meniscus. The Veteran had orthopedics and physical therapy consultations on September 13. The orthopedics doctor noted that the Veteran’s pain was minimal, and he did not need an immobilizer. The physical therapist noted that the Veteran’s left knee had a full active range of motion with mild medial joint palpation tenderness and minimal superior-medial swelling. He was able to use crutches with partial weightbearing and was discharged on September 14, 2010. The Veteran had a VA intestinal conditions examination in July 2015. He reported that he had been diagnosed with diverticulosis for a “long time” (which the examiner noted was shown on an August 2005 treatment record), but that the only time he bled from the diverticulosis was at the time of the September 2010 stress testing following administration of regadenoson/Lexiscan. Since his hospitalization, the Veteran had some mild occasional blood in the toilet paper with bowel movements, but denied any other significant bleeding. After review of VA treatment records, the examiner concluded that there was no objective evidence of causality of diverticulosis or increased disability following the September 2010 VA testing using Lexiscan. The examiner’s rationale was that the Veteran was noted to have diverticulosis in 2005, prior to the 2010 testing. Furthermore, the September 2010 testing occurred at 11:22 a.m., with some reported cramping at that time, which resolved shortly after. The Veteran developed the severe bleeding at approximately 10:00 p.m. that night. The examiner noted that Lexiscan could cause some side effects during testing, but were usually quickly degraded in the body and symptoms resolved within four minutes of administration and were generally considered to be fully resolved 15-30 minutes post-testing. Moreover, the Veteran had similar stress tests in 2009 and 2012. Based on the nearly 11 hours between the testing and the symptoms, as well as the 2009 and 2012 testing without bleeding following administration using the same Lexiscan, it was less likely than not that the gastrointestinal bleed was due to or related to the use of Lexiscan. The Veteran had another VA intestinal conditions examination in November 2016. The examiner noted that the Veteran had been diagnosed with diverticulitis and diverticulosis of the large intestine without perforation or abscess with bleeding in September 2010. The examining physician first opined that the diverticular bleed was not caused or became worse as a result of the VA treatment at issue. The examiner indicated that diverticular bleeding was secondary to diverticulosis, which was an outpouching of the colon. The outpouching resulted in weakness of the colonic wall, which developed in some people during the course of aging. The Veteran’s diverticulosis was not caused by VA treatment or medications, and was not caused by exercise stress testing or nuclear stress testing with regadenoson. The examiner explained that a portion of patients who have diverticulosis develop diverticular bleeding. Stress testing, which is running on a treadmill or having a medication injection to raise the heartrate, does not cause diverticular bleeding. Regadenoson, the medication used to increase blood flow to the coronary arteries for the stress testing, does not cause gastrointestinal bleeding. The examiner opined that it was unlikely that the regadenoson stress testing caused diverticular bleeding or made it worse. It was also unlikely that Plavix, which the veteran was taking, caused diverticular bleeding; it could have made the bleeding more extensive, but the Veteran had a strong indication for Plavix (and aspirin) given his history of serious coronary artery disease and history of transient ischemic attacks (TIAs). The examiner opined that the standard of care the Veteran received at VA prior to hospitalization on September 8, 2010, was appropriate and met the standard of care. There was no indication that the diverticulosis or diverticular bleeding was the result of carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. The examiner opined third that diverticular bleeding was spontaneous and could not be predicted, and as such, could not have been reasonably foreseen by a healthcare provider. Thus, any disability or hospitalization for diverticular bleeding could not have reasonably been foreseen by a reasonable healthcare provider. Finally, the examiner opined that there was no failure on the part of VA to timely diagnose or property treat the claimed disability. The Veteran received care in a timely manner, and the care in the hospital was appropriate. The Veteran also had a VA left knee examination in November 2016. He reported that he continued to have daily knee pain, which “affects the walking a little but I have other things that affect it too.” On examination, the left knee showed flexion to 145 degrees, which was five more degrees than normal. There was objective evidence of pain with weight-bearing. He had pain to palpation on both sides of the knee, but mostly on the medial side, and objective evidence of crepitus. The Veteran had a left meniscal tear with joint locking once in a while, and frequent pain. The examining physician opined that the claimed left knee injury was not caused by or became worse as a result of the VA treatment at issue. Rather, the event occurred when he twisted his knee while standing at a sink for other VA treatment, and it was an unforeseen event. The left knee injury was not caused by, nor did it become worse as a result of, VA treatment. The left knee meniscal tear was a result of the Veteran’ twisting his knee while standing at a sink, and did not result from carelessness, negligence, lack of skill, or similar incident of fault on the part of the attending VA personnel. The examiner opined that the left knee injury was an unforeseen event, and could not have been reasonably foreseen by a reasonable healthcare provider. Finally, there was no failure on the part of VA to timely diagnosis or properly treat the left knee injury, as the Veteran was timely evaluated, had an MRI, and was prescribed therapy timely. As noted by the Veteran, he was offered and declined surgery at the time, and currently declined surgery because it was too high-risk given his age and other conditions. The Board finds that the July 2015 and November 2016 VA medical opinions are probative evidence regarding whether the Veteran’s diverticular bleed and left knee injury were caused by hospital care, medical or surgical treatment, or examination; and whether either condition was caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA during treatment at a VA facility. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). In this regard, the July 2015 examiner noted that the Veteran had been treated for diverticulosis in 2005, which was five years before the stress test, and had undergone similar stress tests in 2009 and 2012 without incident. Moreover, although use of Lexiscan could cause some side effects during testing, they were generally considered to be fully resolved 15-30 minutes post-testing and did not include onset nearly 11 hours after the testing was complete. The November 2016 examiner explained how diverticulitis and diverticulosis, which the Veteran had been diagnosed with prior to the September 2010 stress test, led to diverticular bleeds. The examiner also opined that the standard of care the Veteran received at VA prior to hospitalization on September 8, 2010, was appropriate and met the standard of care. The November 2016 VA examiner also explained that although the Veteran’s left knee injury occurred at a VA facility, it was not caused by the hospital care, medical or surgical treatment, or examination administered by VA. The fall was merely coincidental to his presence at a VA facility; it was not connected to his diverticular bleed treatment. Moreover, there was no failure on the part of VA to timely diagnosis or properly treat the left knee injury. The VA medical opinions are not contradicted by any medical opinion of record. Although the Veteran can describe observable symptoms including pain and bleeding, his statements cannot be used to determine whether his diagnosed diverticular bleed or left knee condition is due to VA care. Unlike some disorders, the etiology of a diverticular bleed goes beyond a simple and immediately observable cause-and-effect relationship and requires medical knowledge to review and interpret clinical tests. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran may be competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). There is no evidence that the Veteran has the medical education and training required to make competent clinical medical diagnosis, or to attribute such a diagnosis to specific VA treatment. As such, the Board finds the Veteran’s statements probative with regard to establishing the Veteran’s symptoms, but does not find his statements probative with regard to establishing entitlement to compensation under 38 U.S.C. § 1151. In any case, their probative value is outweighed by the probative value assigned to an evaluation conducted by a person who has medical expertise and training. In sum, the Board concludes that the neither the diverticular bleed nor the left knee injury were sustained in connection with VA hospital care, medical or surgical treatment, or examination; and neither condition were caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA during treatment at a VA facility. As such, the legal requirements for entitlement to compensation for diverticular bleed and a left knee disability under the provisions of 38 U.S.C. § 1151 are not met. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Nelson 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.