Citation Nr: 21070996 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 19-15 146 DATE: November 29, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for additional disabilities following a perforation of the cecum (claimed as bowel perforation) is granted. FINDING OF FACT 1. On June 4, 2015, the Veteran underwent a colonoscopy and esophagogastroduodenoscopy that proximately caused a perforated colon and internal bleeding leading to a right hemicolectomy with anastomosis and diverting colostomy for which he has a stoma and pouch. 2. The weight of competent and credible evidence is that the additional disabilities were not the result of 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. 3. The weight of competent and credible evidence is that a colon perforation is generally a foreseeable complication, but that in this Veteran's case the extent of the additional disability was not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for perforation of the cecum have been met. 38 U.S.C.§ 1151 (2012); 38 C.F.R. § 3.361 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1975 to September 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans' Law Judge (VLJ) at a board Hearing in April 2021. A copy of the transcript is of record. Entitlement to compensation under 38 U.S.C. § 1151 for perforation of the cecum The Veteran contends that he incurred an additional disability caused by VA medical care, in the form of perforation of his cecum, the lower part of his intestine. See July 2015 VA Form 21-526EZ. Under 38 U.S.C. § 1151, compensation shall be awarded for a qualifying additional disability in the same manner as if such additional disability were service connected. A disability is a qualifying additional disability if the disability was not the result of the Veteran's willful misconduct and either: 1) 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, and the proximate cause of the disability or death was either 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; or 2) the disability or death was proximately caused by the provision of training and rehabilitation services by the Secretary as part of an approved rehabilitation program. There is no allegation that the Veteran's treatment was part of a training or rehabilitation program, and no further discussion of that provision is required. VA adjudicators are directed to assess both medical and lay evidence. In certain circumstances, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). A VA examination was provided in October 2015. The VA examiner provided a detailed history of the Veteran's medical condition from the record, which the Board has separately reviewed. The VA examiner wrote that the Veteran had a colonoscopy and esophagogastroduodenoscopy on June 4, 2015 at a VA medical facility and experienced bloating for two days following the procedure. The Veteran called a nurse hotline the next day, and the Veteran went to the emergency room (ER) where he was diagnosed with perforation of the cecum and underwent corrective surgery. He was discharged on June 17, 2015 and was readmitted on June 23, 2013 and discharged again on June 26, 2015 without further surgery. During the October 2015 examination, the Veteran stated that he was never told of possible perforation, though the VA examiner noted that the Veteran signed pre-procedural forms with notice of possible perforation and had "face to face contact with [a] nurse prior to each procedure." See October 2015 C&P Exam, p. 3. A copy of the consent form is of record. After the initial procedure, he experienced internal bleeding and underwent a right hemicolectomy with anastomosis and diverting colostomy for which he has a stoma and pouch. He has managed to hold down full-time desk job in spite of chronic spillage from his stoma site wherever he tries to stand or walk too far. He is constantly awake at night with cleaning up his stoma due to drainage. He is unable to have social life because of unpredictability of filling up with fecal contents in his pouch and concern for abdominal hernia if he stands up too much, even though he wears an abdominal binder at all times. The VA examiner opined that it was at least as likely as not that the Veterans disability of a perforated right colon was caused by, or became worse, as the result of VA treatment. Id at 2. The VA examiner wrote that he was unable to provide an opinion whether the Veteran's additional disability resulted from carelessness, negligence or lack of skill of the attending VA personnel, whether the disability resulted from an event that could not have been reasonably foreseen, or whether there was failure on the part of VA to timely diagnose and treat the Veteran's condition. Id. An addendum opinion was obtained in March 2016. The VA examiner again noted that the additional disability was caused by VA treatment. He wrote that the Veteran's additional disability did not result from carelessness, negligence, lack or skill or other fault on the part of VA personnel. As rationale, he wrote that the "indication for the procedure was appropriate. The diagnostic and therapeutic interventions were appropriate...the interventions were performed appropriately. The examiner further opined that "there was no failure on the part of the VA to timely diagnose or properly treat the claimed disease or disability. The Veteran was contacted the day after his procedure and was doing well. The following day, he went to his local hospital for evaluation of pain as it was near his home." See February 2016 C&P Exam. The Board finds these opinions to be of probative value, as they came about following an in-person examination, were provided after a review of the record and consideration of the Veteran's lay statements. However, the examiner also wrote that "the additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider. Perforation related to colonoscopy is a known complication of the procedure, but individual cases such as this one can't be foreseen." Id. During the Board hearing, the Veteran described the sequence of treatment after the initial colonoscopy that included removal of a polyp. He testified that upon admission to a private emergency room, he was found to have internal bleeding and after corrective surgery remained in an intensive care unit for more than four weeks. Additional surgery was necessary to correct abdominal hernias which left scarring. As pointed out by the Veteran's representative at the April 2021 hearing, the wording chosen by examiner is confusing, given that the examiner wrote that perforation is a known complication, but could not have been reasonably foreseen. See April 2021 Hearing Transcript, p. 6. The claim is now before the Board. In this case, the Board finds that, as per the May 2016 VA medical opinion, the Veteran suffered from an additional disability that was caused by VA care. This disability was not caused by carelessness or lack of skill on part of VA medical professionals, and a perforated colon is a rare complication. However, in view of the extensive internal bleeding and significant corrective surgery and placing greatest probative weight on the May 2016 medical opinion that this degree of additional disability was not reasonably foreseeable in this Veteran's case, the Board agrees and finds that the incurrence and extent of the additional disabilities including the stoma and pouch were not reasonably foreseeable. Therefore, the Board finds that the criteria for compensation under 38 U.S.C. § 1151 have been met and the claim must be granted. 38 U.S.C. § 5107 ; 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Abels, 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.