Citation Nr: 21005737 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 11-00 526 DATE: February 2, 2021 ORDER Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional neurologic disability, (left lower extremity sciatic neuropathy) as a result of VA surgeries in March 2009, is granted, subject to the laws that govern the payment of monetary benefits. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional disability, claimed as bowel incontinence, as a result of VA care provided in March 2009, is granted, subject to the laws that govern the payment of monetary benefits. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. It is reasonably shown that the Veteran has left lower extremity sciatic neuropathy disability that resulted from VA surgical treatment and was not a reasonably foreseeable consequence of such treatment. 2. It is reasonably shown an error in medical judgement occurred when the Veteran initially presented in March 2009 with rectal pain, that subsequently led to surgical treatment that produced bowel incontinence for an interval during the appeal period. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to compensation benefits for left lower extremity sciatic neuropathy based on VA surgical treatment in March 2009 are met. 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.361 (2019). 2. The criteria for establishing entitlement to compensation benefits for bowel incontinence based on VA treatment in March 2009 are met. 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.361 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to August 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In July 2015 and December 2018, the Board remanded the Veteran’s claims for additional development. That development having been completed; these claims are once again before the Board. Under certain circumstances, 38 U.S.C. § 1151 (a) grants compensation for qualifying disabilities to veterans in the same manner as if such disability were service connected. See also 38 C.F.R. § 3.361 (2019). Specifically, the disability must be caused by hospital care, medical or surgical treatment, or examination furnished the veteran by VA, and the proximate cause of the disability must be (a) 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; or (b) an event that was not reasonably foreseeable. 38 U.S.C. § 1151 (a)(1); 38 C.F.R. § 3.361 (d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran’s additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran’s additional disability or death; 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 or medical or surgical treatment without the veteran’s informed consent. See 38 C.F.R. § 3.361 (d)(1) (2019). Whether the proximate cause of a veteran’s additional disability or death 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. See 38 C.F.R. § 3.361 (d)(2). Second, there must be evidence of additional disability, as shown by comparing the veteran’s condition before and after the VA medical care in question. 38 C.F.R. § 3.361(b). In determining whether disability resulted from disease or injury or aggravation of an existing disease or injury suffered as a result of VA care, the evidence must show actual causation rather than coincidental occurrence. 38 C.F.R. § 3.361 (c)(1). Finally, the disability must not be the result of the veteran’s failure to follow properly given medical instructions. 38 U.S.C. § 1151 (a); 38 C.F.R. § 3.301(c)(3). Neuropathy Here, the Veteran claims that he developed a neurological disability of the left lower extremity as a result of surgery performed by VA in March 2009. A review of the Veteran’s outpatient VA medical records shows that he received several surgical procedures, including a colostomy procedure in March 2009. Prior to that time, medical records do not show that the Veteran had any neurologic complaints or disabilities of the left lower extremity. Thereafter, the Veteran appears to have developed complaints of a left foot drop, and an April 2009 electromyography (EMG) showed suspected left sciatic neuropathy. The Veteran was provided with a VA examination in February 2010. The examiner diagnosed the Veteran with left foot drop as a result of sciatic neuropathy. The examiner opined that the Veteran’s March 2009 VA surgical procedures indirectly caused this condition due to the way the Veteran had been positioned during the surgeries (i.e. in the lithotomy position). However, the examiner did not address whether 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; or an event that was not reasonably foreseeable during the Veteran’s March 2009 surgery was responsible for the Veteran’s left lower extremity neurological disability. The Veteran was provided with an additional VA examination in December 2016. At the examination, it was determined that the Veteran no longer had a left foot drop, which was the initial indication an additional disability was incurred following the 2009 VA treatment. However, he was shown to have left lower extremity sciatic neuropathy, which the examiner appears to have linked with the Veteran’s VA treatment. However, this examiner also did not address whether 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; or an event that was not reasonably foreseeable during the Veteran’s March 2009 surgery was responsible for the Veteran’s left lower extremity neurological disability. Another VA examination occurred in April 2019. The examiner confirmed that the Veteran was diagnosed with left lower extremity neuropathy, but related this to the peroneal nerve instead of the sciatic nerve as in the previous examination. Nevertheless, the examiner opined that the Veteran is more likely than not to have sustained the left superficial peroneal nerve injury due to external compression/pressure during one of the 3 closely spaced surgical procedures in March 2009. There was no detailed information concerning padding/prevention measures during these surgeries, nor was there an operative description of the positioning efforts during these procedures. The examiner considered that if that medical record evidence is not available, then the probable pressure injury would be considered as related to the procedure. However, the examiner maintained that it could not be specified whether this was due to carelessness, negligence, or error in judgement. It could only be stated that the nerve injury is in fact more likely than not proximately related to VA operative care. An addendum opinion was obtained in February 2020. The examiner opined that, pathophysiologically, rectal abscesses can burrow into musculature in the pelvic region, which requires probing by the surgeon to determine location and to drain the abscess. The musculature can include the piriformis muscle. The sciatic nerve is intimately related to the piriformis muscle in that it traverses anteriorly, posteriorly or through it, but the Veteran’s condition is an unusual complication of rectal surgery. As such, it was considered at least as likely as not (greater than 50% probability) that the currently-diagnosed left lower extremity sciatic neuropathy resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider. Further opinion was obtained in April 2020. The examiner opined that, in regard to the issue of whether the Veteran’s disability involved the sciatic nerve or the peroneal nerve, the evidence shows that the Veteran underwent an EMG at the Houston VAMC on April 2009. The April 2019 VA examiner identified the nerve involved as the left superficial peroneal nerve injury and not the sciatic. Nonetheless, the superficial peroneal nerve branches off from the sciatic nerve, and in the examiner’s opinion, injury to the sciatic nerve can show abnormal EMG findings for superficial peroneal nerve. The examiner provided citations to current medical literature to support his opinion. Accordingly, the Veteran’s overall diagnosis was determined to be left lower extremity sciatic nerve neuropathy. In yet an additional addendum opinion obtained in August 2020, the examiner changed his conclusion, finding that the currently-diagnosed left lower extremity sciatic neuropathy resulted from an event that could have reasonably been foreseen by a reasonable healthcare provider due to the fact that it can be a common complication. It is not in dispute that the Veteran was hospitalized by VA and received VA surgical and medical care in March 2009. It is also not in dispute that he has additional left lower extremity sciatic nerve neuropathy following the VA hospitalization and surgical treatment (as described in the December 2016, February 2020 and August 2020 VA examiner’s opinions with a clarification that the April 2019 VA examination was not actually a contrary finding, but rather consistent due to the common misreading of sciatic nerve disabilities with the peroneal nerve on EMG). Furthermore, it is no longer in dispute (the December 2016, April 2019, February 2020, and August 2020 VA providers’ opinions each support) that the left lower extremity sciatic nerve neuropathy is a consequence of complications in the course of, or following, the March 2009 VA surgery. What remains to be established is that there was fault on the part of VA in the treatment provided or that the neuropathy is a consequence of the surgical treatment provided that was not reasonably foreseeable. VA providers have opined that the standard of care the Veteran received was proper, although, this was clarified to mean that nothing in the available record shows any improper care, as indicated by the April 2019 VA examiner. Despite the findings of the August 2020 VA examiner who explained that the Veteran’s left lower extremity sciatic nerve neuropathy could be a reasonable foreseeable result of the type of surgery performed in March 2009, the fact that such complication was not listed on the Veteran’s notably comprehensive informed consent document signed before the surgery suggest that the series of events was not reasonably foreseeable, otherwise it would have been listed as well. At the very least, the evidence regarding the reasonable foreseeability is in equipoise, given the opinions provided, and the content of the informed consent document signed in March 2009. In any event, the Veteran is afforded the benefit of the doubt in this instance, and it is found that the Veteran’s left lower extremity sciatic nerve neuropathy was an event that was not reasonably foreseeable. Last, there is no indication in the record that he Veteran’s left lower extremity sciatic nerve neuropathy was the result of failure to follow properly given medical instructions. In light of the foregoing, and resolving any remaining reasonable doubt in the Veteran’s favor, as required, the Board finds that all requirements for substantiating a claim under 38 U.S.C. § 1151 are met, and that entitlement to benefits under § 1151 for left lower extremity sciatic nerve neuropathy as due to VA surgical care in March 2009 is shown Bowel Incontinence Here, the Veteran claims that he developed a loss of bowel control as a result of a colostomy performed by VA in March 2009. In this regard, the Veteran presented to a VA medical facility March 13, 2009 for rectal pain. His temperature was 100 degrees. No rectal examination appears to have been accomplished and he was prescribed hemorrhoid treatment as an outpatient and released. He returned on March 17, 2009 with signs of sepsis and diagnosed to have a large perirectal infection. He was taken to surgery for drainage/debridement of the infection. He remained septic and was taken back to surgery March 19, 2009 for diverting sigmoid colostomy and further debridement of the perirectal area. On March 20, 2009, a third surgery was performed for further debridement of the infection. The colostomy was reversed in January 2010. A review of the Veteran’s outpatient VA medical records shows that prior to March 2009, the Veteran had no complaints or diagnoses of a loss of bowel control, although there were complaints of constipation. The Veteran claims that he began experiencing fecal incontinence after the March 2009 procedures, which incontinence was later confirmed at a January 2011 VA examination. At that time, the Veteran was diagnosed to have stool incontinence status post rectal surgery, and it was noted that the Veteran had been wearing pads for fecal leakage since his colostomy removal in January 2010. The Veteran was provided with an additional VA examination in December 2012. At this examination, the presence of an impairment of rectal sphincter control also was identified. It was indicated to produce constant slight leakage, and occasional moderate leakage. The examiner opined that it was as least as likely as not that the Veteran, prior to the March 2009 colostomy was seriously ill and could have died; needed surgery; and fecal incontinence was a result of treatment for the Veteran’s life threatening condition. The examiner, however, found no evidence of 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; or an event that was not reasonably foreseeable. The Veteran was provided with an additional VA examination in April 2019. At that time the Veteran no longer had bowel incontinence, but the examiner found that there was an error in judgment at the time of the Veteran’s initial presentation on March 13, 2009, in failing to conduct a rectal examination. That failure led to what became 4 days later a life threatening infection, requiring the multiple surgeries. Another VA examination was conducted in November 2019 when the diagnosis was status post colostomy as a result of the March 2009 surgery. Although this condition appeared to have initial symptoms of bowel incontinence, it was currently asymptomatic. Additionally, though the Veteran appears to have complained of symptoms of constipation at that time, there was no indication that this was the result of the March 2009 surgery. It is not in dispute that the Veteran was hospitalized by VA and received VA surgical and medical care in March 2009. It is also not in dispute that he had additional bowel incontinence for a period of time following the VA hospitalization and surgical treatment, to specifically include the removal of his colostomy bag in January 2010. Furthermore, it is no longer in dispute that the bowel incontinence is a consequence of complications in the course of, or following, the March 2009 VA surgery. What remains to be established is that there was fault on the part of VA in the treatment provided or that the bowel incontinence is a consequence of the surgical treatment provided that was not reasonably foreseeable. The December 2012 VA examiner indicated that the Veteran received the proper standard of care, although this appears to be judgement concerning the surgeries themselves. However, the April 2019 VA medical opinion was to the effect that the treatment prior to the surgical procedures contained an error in judgement that formed the basis for the course of events that led to the Veteran’s bowel incontinence. Accordingly, the Veteran is shown to have been diagnosed with a disability of bowel incontinence (January 2011 and December 2012 VA examinations) during the relevant appeal period; that was proximately caused by the March 2009 surgery performed by VA; and, but for the VA’s error in judgement, such surgery and resulting bowel incontinence would not have occurred. As such, the requirements for compensation under 38 U.S.C. § 1151 are met. Last, there is no indication in the record that he Veteran’s bowel incontinence was the result of failure to follow properly given medical instructions. In light of the foregoing, and resolving any remaining reasonable doubt in the Veteran’s favor, as required, the Board finds that all requirements for substantiating a claim under 38 U.S.C. § 1151 are met, and that entitlement to benefits under § 1151 for bowel incontinence as due to VA care in March 2009 is shown. REASONS FOR REMAND As the Veteran’s claim for compensation for neuropathy and bowel incontinence has been granted, the claim of entitlement to a TDIU must be deferred pending the assignment of disability evaluations for these additional disabilities. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Additionally, any recent treatment records, including VA records, should also be obtained. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (c) (2019); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The matters are REMANDED for the following action: 1. The Veteran should be requested to identify any additional records of treatment he wishes considered in this appeal, which records should be sought. Simultaneously, any additional records of VA treatment that have not been considered should be associated with the claims file. 2. After completing the above action, and any other development as may become indicated, the claim for TDIU benefits should be re-adjudicated. M. E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dodd, Ryan 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.