Citation Nr: 21005237 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 15-09 435 DATE: January 29, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a perforated colon, to include hernias and methicillin-resistant staphylococcus aureus (MRSA) infection is denied. FINDING OF FACT The evidence does not establish that the Veteran’s additional disabilities are as a result of VA negligence, carelessness, lack of proper skill, or error in judgment; VA exercised the degree of care that would be expected of a reasonable health care provider. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for residuals of a perforated colon, to include hernias and MRSA infection have not been met. 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.361 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1978 to February 1980. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a November 2018 hearing. This issue was previously before the Board in May 2019 and October 2020, each time remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. The Board finds there was sufficient compliance with the October 2020 Board remand directives. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The October 2020 Board remand instructed the RO to obtain the signed consent form for the April 2013 surgery and associate with the claims file. This was successfully added to the claims file in November 2020. Compensation under 38 U.S.C. § 1151 When a Veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.358 (a). To be awarded compensation under section 1151, a Veteran must show that VA treatment (or other qualifying event) resulted in additional disability, and further, that 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 that the proximate cause of the disability was an event which was not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. Regarding whether additional disability exists, the Veteran’s physical condition immediately prior to the beginning of the hospital care, medical or surgical treatment, or other relevant incident in which the claimed disease or injury was sustained upon which the claim is based, is compared to the Veteran’s condition after such treatment, examination or program has stopped. 38 C.F.R. § 3.361(b). Provided that additional disability exists, the next consideration is whether the causation requirements for a valid claim for benefits have been met, to consist of both actual and proximate causation. In order to establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the Veteran’s additional disability. If it is shown merely that a claimant received medical care or treatment, and has an additional disability, that in and of itself would not demonstrate actual causation. 38 C.F.R. § 3.361(c)(1). Also, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment or other instance of fault proximately caused the additional disability, it must be shown that VA failed to exercise the degree of care expected by a reasonable treatment provider or furnished the treatment at issue without informed consent. 38 C.F.R. § 3.361(d)(1). Proximate cause may also be established where the additional disability was an event not reasonably foreseeable, 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 medical 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 the type of risk that a reasonable health care provider would have disclosed as part of the procedures for informed consent (in accordance with 38 C.F.R. § 17.32). 38 C.F.R. § 3.361(d)(2). Here, in his January 2013 claim, the Veteran asserted that following an August 2012 colonoscopy performed by VA, he experienced severe cramps and vomiting, and that following emergency surgery for a perforated colon, he contracted MRSA disease. In his December 2013 Notice of Disagreement, the Veteran asserted that he now has 3 hernias, MRSA disease, and a permanent 8-inch scar. The Veteran underwent a colonoscopy in August 2012, for which he signed an informed consent form that noted that the colonoscopy held the risk of discomfort or pain, tearing of the lining of the wall, and that a severe tear may require surgery. The next day, VA treatment records indicate that the Veteran complained of bloating and abdomen pain, which began two hours post colonoscopy. Surgery was performed for the perforated bowel. The Veteran signed an informed consent form that noted risks included wound infection, poor healing or reopening, blood or clear fluid collecting at the wound sites, and incisional hernia. At a follow up appointment to remove the staples, VA treatment records indicate that there was serious discharge and a small open wound. The Veteran began regular treatment at the VA wound clinic. December 2012 records indicate spontaneous discharge and foul odor from the navel, and the Veteran tested positive for MRSA. February 2013 VA treatment records indicate that persistent drainage remained at the incision site. An umbilical hernia was diagnosed in March 2013, and the Veteran was advised that if it was not bothering him, then nothing needed to be done. The Veteran opted for surgery, and signed a March 2013 informed consent form that noted that risks included possible injury to bowel or bladder underneath the ventral hernia, possible recurrent hernia, infection of incision or mesh, requiring further treatment or surgery, postoperative pain, collection of bloody fluid at the prior hernia site, scar tissue around the mesh, or unsightly scar. In April 2013, the Veteran underwent surgery for incisional and umbilical hernias, and tested positive for MRSA. However, the hernias recurred. April 2017 VA treatment records show a large ventral hernia extending to the right side of the abdominal wall, a small left para midline hernia, an umbilical hernia, and numerous colonic diverticula. In a September 2014 statement, the Veteran asserted that he was told by VA that they would not repair his hernia because he was morbidly obese, and that the hernia would continue to reoccur because the incision was at the weakest point of the stomach. In a February 2015 statement, the Veteran asserted that he gained an extreme amount of weight following the surgery while wearing wound vacs. At his October 2018 Board hearing, the Veteran reported that during the colonoscopy, he began having pain, but was told by the doctor that he was almost done. He explained that he was not informed of the potential complications and that he felt under duress to sign the informed consent form. The Veteran also stated that he ultimately got surgery to repair the hernias in July 2018 by a private physician. In November 2013, the RO obtained a medical opinion for purposes of evaluating the § 1151 claim. The examiner opined that the care in the performance of the colonoscopy was performed with appropriate precautions and skill for appropriate indications. The procedure was uneventful with no excessive pain, and the Veteran was discharged without any significant discomfort. The examiner noted that the procedure was clearly indicated for the blood positive stool, the treatment of the arteriovenous malformation lesion in the setting of nonsteroidal antiinflammatory drugs was what would be expected of a reasonable health care provider, and the application of the treatment was done in a skillful manner as evidenced by the procedure photographs. The discharge instructions directed him to call the hospital or present to the Emergency Room (ER) if he had severe pain, which the examiner stated that he did not do. The next day he went to the ER where he was noted to have free air in the abdomen suggesting a perforated viscus. Upon surgery, a 5 mm perforation was found in the cecum at the site of the treatment, and a small amount of fecal contamination was debrided. The defect was closed with primary over sewing. Following regular treatment for incision and drainage, and the April 2013 hernia repair, he was advised that his high weight held a high chance of recurrence of the hernia, and infection and wound damage. The examiner summarized that the Veteran received informed consent, including perforation, as known and reasonably foreseeable complication of the procedure. The examiner opined that the complication was handled in a correct and expeditious manner, and that morbidity was continually addressed appropriately by surgical staff and was contributed to by the Veteran’s obesity. The RO obtained another medical opinion in November 2019. The examiner opined that although the Veteran signed the informed consent form, and perforation, tissue infection, and muscle damage are all common potential surgical risks in all colonoscopies, there was insufficient evidence upon which to base an opinion. The examiner stated that based on clinical presentation, examination findings, and Veteran’s reports, they could not opine if there was carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on part of VA providers. The examiner explained that residual gastrointestinal conditions may have been unfortunate post-operative risks commonly noted with surgical invasive procedures. And finally, in July 2020, the RO obtained another VA medical opinion where the examiner opined that it is less likely than not that each additional disability is due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance, and that it is less likely than not that each additional disability is due to an event not reasonably foreseeable. The examiner explained that perforation is a known complication of a colonoscopy, as noted in the informed consent form the Veteran signed, and that wound infection and incisional hernia were also listed on the signed consent forms. The examiner stated that while many patients do not suffer from either complication, by the time the need for the August 2014 surgery to repair the perforated colon was clinically recognized, the stool leaks carried a very real risk of infection or incomplete healing, which leads to hernia formation. Further, the examiner explained that severe obesity, which makes abdominal surgery even more difficult, places more tension on any intended wound closure, increasing risk of wound failure. The examiner also stated that infection is always a risk in any hospital setting, even in operating rooms where there is negative pressure and the surgeons wear attire reminiscent of space suits. The examiner summarized that it appears that the complications that the Veteran had after his colonoscopy were recognized as potential adverse outcomes prior to the surgeries, which the Veteran elected to proceed with, and that obesity played a major role in the development of his hernias. The Board affords significant probative weight to the July 2020 VA medical opinion. First, the examiner indicated a thorough review of the Veteran’s medical history. Second, the examiner’s review of the medical evidence was consistent with the information contained in the Veteran’s claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion). Third, the examiner’s findings were fully explained and consistent with the record. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Board affords less probative weight to the November 2013 VA medical opinion. Although it provides similar reasoning to the July 2020 opinion, they did not specifically identify the additional disabilities or discuss whether any additional disability was an event not reasonably foreseeable. The examiner also provided a contradictory statement that the Veteran did not follow the discharge instruction to report to the ER if he experienced severe pain, but then stated that the Veteran reported to the ER for pain. It is unclear how this contradictory statement may have contributed to the examiner’s opinion. And the Board affords no probative weight to the November 2019 VA medical opinion, as it was largely speculative, and the examiner declined to provide an opinion. Based on the July 2020 VA opinion, the Board finds that although the residuals of a perforated colon, to include hernias and MRSA infection, followed VA care, they were not caused by 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 that the proximate cause of the disability was an event which was not reasonably foreseeable. Thus, the preponderance of the evidence is against the appeal for compensation under 38 U.S.C. § 1151 for residuals of a perforated colon, to include hernias and MRSA infection. In reaching this decision, 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 in the instant appeal, and the appeal is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.