Citation Nr: 21077311 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 16-29 570 DATE: December 29, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for residuals of VA gall bladder surgery in October 2013 is denied. FINDING OF FACT The Veteran does not have a qualifying additional disability caused by the October 2013 VA gall bladder surgery. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for a qualifying additional disability from the October 2013 VA gall bladder surgery are not met. 38 U.S.C. §§ 1151, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.361 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1978 to February 1982, April 2003 to July 2003, and from January 2011 to February 2012. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, a hearing was held before the undersigned. A transcript of the hearing is of record. The case was previously before the Board in June 2019, August 2020, and April 2021 when it was remanded for further development. Entitlement to compensation under 38 U.S.C. § 1151 The Veteran is seeking compensation under 38 U.S.C. § 1151 for additional disability, to include severe pain, following a gall bladder removal surgery in October 2013. Under 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability or death 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 if (1) the disability or death was not the result of the veteran's willful misconduct, (2) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under the law administered by the Secretary, and (3) 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; 38 C.F.R. § 3.361; Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The question for the Board is whether it is at least as likely as not that the Veteran sustained additional disability that was not the result of his willful misconduct; and the disability was caused by hospital care, medical or surgical treatment, or examination furnished under the law administered by VA; and the proximate cause of the disability 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. VA treatment records note that an August 2013 ultrasound indicated that the Veteran had a shrunken gallbladder filled with gallstones. Treatment records note subsequent complaints of right upper quadrant pain, and the Veteran opted for surgery, which was scheduled in October 2013. The consent form indicates that the Veteran was notified of the risks and side effects of the surgery and the Veteran signed the consent form. The Veteran underwent a laparoscopic exam but was found to not have a gall bladder. In November 2013, the Veteran indicated that she had no appetite and constipation. She denied abdominal pain, fever, chills, and sweats. She felt achy over the past few days. The abdomen was soft and tender, and wounds were clear. In April 2015, it was noted that the Veteran had a history of gall stone removal surgery but was found to be born without a gall bladder as a result of that surgery. It was also noted that the Veteran reported an effective recovery from the surgery. The Veteran testified at a hearing before the Board in December 2018, where she stated that she underwent a VA ultrasound during which a radiologist indicated that she had a gall bladder full of gallstones. During surgery to remove her gall bladder it was discovered that she was born without a gall bladder. The Veteran stated that as a result of the unnecessary surgery she suffers from more severe right upper quadrant pain which is so painful that it causes her to double over and lose her breath. She also indicated that the radiologist who stated that she had a gall bladder continues to stand by that finding. She also indicated that she would just bear with it and her medications used for her back help with the pain, but that she is unable to drive as a result. An August 2019 VA examiner found that the Veteran had chronic cholangitis. The examiner indicated that the Veteran had occasional sharp pain. She had occasional colic in the right upper quadrant. The examiner indicated that the symptoms the Veteran contended were additional disabilities resulting from the gall bladder surgery in October 2013 were not additional disability caused by that surgery, as the Veteran was pain and symptom free for years after the surgery. The examiner indicated that it was less likely than not that the proximate cause of such disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on part of VA. VA treatment records from August 2019 indicate that the Veteran had right upper quadrant pain which was intermittent for years. It was noted that she had a laparoscopic procedure done in 2013. The clinician questioned whether pain was due to cholelithiasis and advised the Veteran to take note of what foods triggered pain. In December 2019 and July 2020, it was noted that the Veteran had chronic right upper quadrant pain and was negative for a gall bladder and pain was likely musculoskeletal related. The August 2020 remand determined that the August 2019 VA examiner's opinion failed to address the Veteran's symptoms, therefore, a new medical opinion was warranted. A VA medical opinion was obtained in October 2020. The clinician indicated that residuals of VA gallbladder surgery were not caused by or worsened as a result of VA treatment. While the Veteran did have right upper quadrant pain in 2015 and 2019, the record did not support that the pain was new in onset or worse than prior to the October 2013 surgery. The clinician indicated that the July 2020 VA treatment record indicated chronic upper right quadrant pain as a current medical complaint, but without any details about ongoing concerns. Therefore, no additional disability could be confirmed. Because the October 2020 opinion did not consider the Veteran's complaints of severe right upper quadrant pain, an addendum opinion was obtained in July 2021. The clinician reviewed the claims file and indicated that it was less likely than not that the Veteran had additional disability caused by the 2013 VA gall bladder surgery. The surgery determined that the Veteran did not have a gall bladder and she declined additional evaluation to determine if she had ectopic gall bladder tissue. She was doing well in November 2013 and denied abdominal pain and no residuals from the surgery were identified. Subsequent post-surgery treatment records did not document pain and indicated that the Veteran was doing well. While the original ultrasound suggested gall bladder disease, ultrasound was just one tool to determine a diagnosis and it may not be confirmative. The standard of care at the time was met. There were many possible causes of right upper quadrant pain, which would include gall bladder disease, kidney stones, liver disease, pancreatitis, colon disease, and vascular abnormalities, and the Veteran does have liver disease on ultrasound. In an additional opinion, the clinician also indicated that review of VA diagnosis and treatment were appropriate and timely, accepted protocols were followed, and the standard of care was met in this case. The examiner noted that the absence of a gall bladder is generally identified at surgery or post-mortem and that identification of congenital absence of gall bladder is difficult to determine by ultrasound. Ultrasound is generally one of the first line imaging procedures performed for right upper quadrant pain, but not adequate to diagnose absence of a gall bladder. The ultrasound was appropriate based on the Veteran's history and physical examination findings. There were no continuous or ongoing complaints of right upper quadrant pain after the 2013 surgery and no complications were documented. The evaluation and workup were appropriate and met recommended standards. The examiner noted that the Veteran continues to have findings of fatty liver disease which could be the present cause of her right upper quadrant pain, and it is unlikely that the 2013 procedure is the cause of the Veteran's current complaints of pain. The medical records also did not support the frequency of severity of the Veteran's reported complaints. The Veteran also never underwent an abdominal CT and additional work up to rule out other causes of right upper quadrant pain. Following a review of the evidence, the Board concludes that the preponderance of the evidence weighs against finding that the October 2013 gall bladder surgery resulted in additional disability. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. The Board affords substantial probative weight to the July 2021 opinion, which considered the record and provided a rationale supporting the opinion with clear conclusions and adequate medical explanations. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The rationale is also supported by the evidence of record, which indicates that the Veteran was not diagnosed with any residual conditions and did not complain of any complications post-surgery, and that in April 2015, the Veteran reported an effective recovery from the surgery. While the Veteran believes that she has an additional disability due to the October 2013 gall bladder surgery, the issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives greater probative weight to the competent medical evidence, including the July 2021 VA opinion. The Veteran is not competent to provide her opinion as to the cause of her symptoms, including the extent to which any action or treatment by VA health care providers contributed to her medical problems, as it is not shown that the Veteran possesses the medical expertise to provide such an opinion. Id. For the foregoing reasons, the preponderance of the evidence is against a finding that the Veteran incurred additional disability as a result of VA procedures, care, or treatment. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.361. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bonnie Yoon, 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.