Citation Nr: 21007771 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 12-23 676 DATE: February 10, 2021 ORDER Entitlement to compensation pursuant to 38 U.S.C. § 1151 for residuals of an intestinal perforation during a colonoscopy is denied. FINDING OF FACT The Veteran did not sustain any permanent or increased disability as a result of his intestinal perforation. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C. § 1151 have not been met. 38 U.S.C. §§ 1151, 1701, 1703, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to July 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As a matter of procedural background, the Board initially denied the Veteran’s claim of entitlement to compensation pursuant to 38 U.S.C. § 1151 for residuals of an intestinal perforation sustained during a colonoscopy in a June 2017 decision. The Veteran filed a timely appeal of that denial to the United States Court of Appeals for Veterans Claims (Court), and in October 2018, the Court issued a Memorandum Decision which vacated the Board’s denial of the claim and remanded it to the Board for further development and reconsideration. In June 2019, the Board issued a remand in convention with the Court’s Memorandum Decision. The appeal is now returned to the Board for further appellate review. 1. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for residuals of an intestinal perforation during a colonoscopy The Veteran seeks compensation pursuant to 38 U.S.C. § 1151 for residuals of an intestinal perforation sustained during a colonoscopy. After careful consideration, the Board finds that the claim should be denied. Compensation shall be awarded for a qualifying additional disability of a veteran in the same manner as if such additional disability were service connected. For the purposes of this section, a disability is a “qualifying additional disability” if the disability was not the result of the veteran’s willful misconduct, and the disability was caused by hospital care, medical or surgical treatment, or examination furnished to the veteran under any law administered by the Secretary, “either by a Department employee or in a Department facility.” In addition, the proximate cause of the disability must be either 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 not reasonably foreseeable. 38 U.S.C. § 1151. On April 22, 2011, during a primary care visit at a VA medical center the Veteran was diagnosed with rectal bleeding and as VA did not perform colonoscopies, the VA physician referred him to a private gastroenterologist, Dr. C., for a colonoscopy, which was performed on May 19, 2011. During the procedure, the Veteran experienced an intestinal perforation, and he was forced to undergo corrective surgery the following day. The Veteran contends that Dr. C. did not exercise the requisite standard of care when performing the colonoscopy. The Board, in June 2017, denied the Veteran’s claim of entitlement to compensation pursuant to 38 U.S.C. § 1151 for residuals of an intestinal perforation sustained during the colonoscopy on the bases that the May 2011 colonoscopy that the Veteran underwent was performed on a fee basis and was not provided by a VA employee or at a VA facility. The Veteran appealed to the Court on the basis that VA referred him to the private gastroenterologist. In the October 2018 Memorandum Decision, the Court discussed a recent case, Ollis v. Shulkin, 857 F.3d 1338, 1344-46 (Fed. Cir. 2017), whereby the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) recognized that a veteran may receive benefits under a “referral theory” where VA medical providers are negligent in recommending that the veteran undergo a particular procedure, or by referring the veteran to a particular doctor. The Court found it significant that the Board did not address whether the Veteran may be entitled to section 1151 benefits under a referral theory. Thus, the Court vacated the June 2017 Board decision and remanded the matter for the Board to consider the Veteran’s claim in light of the Federal Circuit’s decision in Ollis. In this case, however, the Board need not consider whether VA is open to liability on a “referral theory” under Ollis, as the Veteran’s claim fails the primary criteria for compensation pursuant to 38 U.S.C. § 1151, namely that the Veteran did not sustain any “additional disability” as a result of his colonoscopy and subsequent intestinal perforation. In considering this claim, the Board remanded this appeal in June 2019 so that the Veteran could be afforded a VA examination and a medical opinion be furnished, as well as the complete medical record be made available in the claims file. After the complete medical record was uploaded, the RO concluded, and the Board agrees that the Veteran needed not be given an in-person examination, but that a review of the complete medical history, which is voluminous and complete, was sufficient to render the opinions necessary to address this appeal. A medical opinion was obtained from a specialist, after review of the Veteran’s complete medical history, to include his surgical records from 2011, and his treatment records to date, and included a discussion of how the opinions were reached, to include citation to known medical principles. The Board finds that, therefore, there has been substantial compliance with its prior remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). After a review of the evidence of record, the December 2020 examiner stated that, while the colonoscopy itself was complicated with an intestinal perforation, that was resolved with surgery. Per the non-VA gastroenterology records, the Veteran had a complete recovery without any other disabilities. Per the December 2020 examiner, the colonoscopy itself was performed with indications (rectal bleeding and colon polyps, and a family history of colon cancer) as per gastroenterology guidelines, therefore, it was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instances of fault on the part of VA or Dr. C., the private gastroenterologist. In support of this, the examiner noted multiple medical treatises which suggest such surgery based on his presentation at the time. Further, Dr. C. explained the risks and benefits of the procedure and other diagnostic alternatives to the Veteran prior to the procedure, and the Veteran agreed to proceed with the colonoscopy, knowing that perforation was a possible outcome. Despite the perforation which occurred, it was repaired within 24 hours, and he recovered without any sequalae or additional disabilities. A review of the Veteran’s VA treatment records also do not indicate any additional disability as a result of his intestinal perforation. Of particular note, his VA treatment records since 2011 routinely note no presence of any gastrointestinal disorder. The Board by no means wishes to minimize the injury he experienced during treatment, and the distress it may have caused him. However, he has not articulated any disorder that he currently has resulting from the occurrence, nor do the medical treatment record reflect any objectively observed symptomatology. As such, in the absence of an “additional disability” incurred resulting from VA treatment, the requirements of 38 U.S.C. § 1151 have not been met. Therefore, entitlement to benefits under this section is not warranted, and the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Pryce, Counsel