Citation Nr: 21013185 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 13-17 676 DATE: March 8, 2021 ORDER Entitlement to VA benefits under 38 U.S.C. § 1151 for additional disabilities, diagnosed as an anastomotic leak, intrabdominal abcess, and stoma wound dehiscence, caused by January 2009 hemicolectomy surgery performed at, and aftercare rendered by, the Iowa City Department of Veterans Affairs Medical Center (VAMC) is granted. Entitlement to VA benefits under 38 U.S.C. § 1151 for additional disabilities, diagnosed as residuals of a splenectomy, sepsis resulting in leukocytosis, residual surgical scarring from colostomy placement and takedown surgeries, candidemia, and oral candidiasis, caused by January 2009 hemicolectomy surgery performed at, and aftercare rendered by, the Iowa City VAMC is granted. FINDINGS OF FACT 1. The most probative evidence reflects that the Veteran incurred additional disabilities, diagnosed as an anastomotic leak, intrabdominal abcess, and stoma wound dehiscence, as the result of a lack of proper skill on the part of VA in completing the January 2009 hemicolectomy surgery performed at, and aftercare rendered by, the Iowa City VAMC. 2. The most probative evidence reflects that the Veteran incurred additional disabilities, diagnosed as residuals of a splenectomy, sepsis resulting in leukocytosis, residual surgical scarring from colostomy placement and takedown surgeries, candidemia, and oral candidiasis, as the result of an event not reasonably foreseeable consequent to January 2009 hemicolectomy surgery performed at, and aftercare rendered by, the Iowa City VAMC. CONCLUSIONS OF LAW 1. The criteria for entitlement to VA benefits under 38 U.S.C. § 1151 for additional disabilities, diagnosed as an anastomotic leak, intrabdominal abcess, and stoma wound dehiscence, as the result of the January 2009 hemicolectomy surgery performed at, and aftercare rendered by, the Iowa City VAMC, have been met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.361. 2. The criteria for entitlement to VA benefits under 38 U.S.C. § 1151 for additional disabilities, diagnosed as residuals of a splenectomy, sepsis resulting in leukocytosis, residual surgical scarring from colostomy placement and takedown surgeries, candidemia, and oral candidiasis, as the result of the January 2009 hemicolectomy surgery performed at, and aftercare rendered by, the Iowa City VAMC, have been met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1969 to February 1970. This matter comes to the Board of Veterans' Appeals (Board) from a June 2011rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In her September 2013 substantive appeal, the Veteran requested to participate in a Board hearing conducted at the RO. Such a hearing was scheduled to be completed in August 2017; however, the Veteran requested that the hearing be postponed. Another Board hearing was scheduled, as per the Veteran’s request, in March 2018, but the Veteran did not report for the hearing despite receiving ample notice of such. Neither the Veteran nor her representative have provided VA with good cause for her failure to report for the March 2018 hearing or requested that it be rescheduled. Accordingly, the Veteran’s prior hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). The Veteran’s appeal was previously before the Board in May 2018, when it was remanded for further evidentiary and procedural development. The Board’s May 2018 remand directive and the subsequent actions of the AOJ will be further discussed below. This issue has been returned to the Board fir further appellate consideration. Preliminary matters The Veteran’s appeal includes consideration of several unfortunate circumstances. In April 1997, the Veteran was involved in a motor vehicle that resulted in her incurrence of severe disabilities with significant physical and cognitive impairment. Due to the effects of this incident, the Veteran was granted disability benefits from the Social Security Administration (SSA), a court-ordered civil guardianship was instituted, and the AOJ proposed and implemented a finding that the Veteran was incompetent to handle dispersal of VA funds, resulting in the appointment of a VA fiduciary. Notably, the record reflects that, during the 11-year pendency of the current appeal, the Veteran’s disabilities have progressed to the point where she can no longer participate in the development of her appeal. The Board notes the above circumstances for two reasons. First, despite the above evidence showing that the Veteran’s cognitive functioning has been severely impaired since the April 1997 motor vehicle accident, the January 2009 and September 2011 surgical reports reflect that “The patient[/Veteran] HAS decision-making capacity.” [Emphasis as in the originals]. These statements seem incongruent with the evidence showing that the Veteran was provided a court-appointed guardian and VA-appointed fiduciary secondary to her cognitive impairment. This point is crucial in the present case, as claims and appeals for VA benefits pursued under 38 U.S.C. § 1151 include consideration of a claimant’s appreciation and understanding of the risks associated with undergoing medical treatments, to include surgical procedures, and their ability to provide informed consent with such an understanding. 38 C.F.R. § 17.32 Second, as noted by the Veteran’s representative in a February 2021 brief, the record for review is incomplete due to significant deficiencies in VA’s fulfillment of the duty to assist the Veteran, who, as noted above, can no longer participate in the development of her appeal due to her fragile health. Specifically, the AOJ has not sought or obtained the records concerning the Veteran’s receipt of SSA disability benefits or the court-appointed guardianship. Further, while executed informed consent forms for the January 2009 and September 2011 surgeries have been sought on two occasions, such have not been provided by the Veterans Health Administration (VHA). In light of the above deficiencies in the development of the Veteran’s appeal, the Board has considered the propriety of another remand in order to ensure completeness of the record for review; however, for the reasons discussed below, the Board concludes that the record is sufficient to grant the benefits sought by the Veteran, and thus, another remand would only result in unnecessary delay without additional benefit to the Veteran. Soyini v. Derwinski, 1 Vet. App. 540 (1991). Finally, as will be further discussed below, claims and appeals for VA compensation based on the provisions of 38 U.S.C. § 1151 are uniquely reliant on case-specific occurrences and findings. In this decision, the Board has bifurcated the Veteran’s initial claim to clearly delineate each additional disability being granted and the reasons for the individual allowances under the pertinent laws. VA benefits under 38 U.S.C. § 1151 A veteran who suffers disability resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability in the same manner as if such additional disability were service-connected if the additional disability was not the result of willful misconduct and was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing that treatment, or an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1)(A), (B) (2012); 38 C.F.R. § 3.361(a)-(d); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The purpose of the statute is to award benefits to those veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151(a). First, 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). To determine whether a veteran has an additional disability, VA compares the veteran’s condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the veteran’s condition after such care, treatment, examination, services, or program has stopped. VA considers each body part or system separately. The additional disability must not be the result of the veteran’s willful misconduct. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.301(c)(3). Second, the additional disability must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or CWT program furnished the veteran by VA. 38 C.F.R. § 3.361(c). In order for additional disability to be compensable under 38 U.S.C. § 1151, the additional disability must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). The Federal Circuit has held that the causation element of section 1151 is satisfied not only when an injury is “directly” or “actually” caused by the actions of VA employees, but also where an injury occurs in a VA facility resulting from VA’s negligence. Viegas, 705 F.3d at 1378. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease of injury for which the care or treatment was furnished unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). The factual elements necessary to support a claim under section 1151 based on failure to diagnose or treat a preexisting condition may vary with the facts of each case and the nature of the particular injury and cause alleged by the claimant. As a general matter, however, entitlement to benefits based on such claims would ordinarily require a determination that: (1) VA failed to diagnose and/or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the veteran suffered disability or death which probably would have been avoided if proper diagnosis and treatment had been rendered. Vet. Aff. Op. Gen. Couns. Prec. 5-2001 (Feb. 5, 2001); see also Roberson v. Shinseki, 607 F.3d 809, 817 (Fed. Cir. 2010). Moreover, additional disability caused by a veteran’s failure to follow properly-given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). Third, the proximate cause of the disability, as opposed to a remote contributing cause, must be: (1) 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 (2) an event that was not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361(d). Regarding carelessness or negligence, 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 was the proximate cause of a veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the 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. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361 (d)(1). Regarding reasonable foreseeability, 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 foreseen or disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2); Schertz v. Shinseki, 26 Vet. App. 362, 367-69 (2013). Thus, section 1151 contains two causation elements – a veteran’s additional disability must not only be caused by the hospital care or medical treatment he or she received from VA, but also must be proximately caused by the VA’s fault or an unforeseen event. 38 U.S.C. § 1151(a)(1). Factual background As noted above, the AOJ adjudicated the Veteran incompetent to handle dispersal of VA funds in an August 2005 rating decision based on a March 2005 VA examiner’s statement noting that such was necessary due to her cognitive impairment and lack of judgment and insight resulting from a closed-head wound incurred in an April 1997 motor vehicle accident. A November 2008 routine colonoscopy revealed a sessile polyp at the splenic flexure that was not amendable to top endoscopic removal. Further testing showed that the polyp was a tubulovillous adenoma, and the Veteran was scheduled for a hemicolectomy for its removal in January 2009. Although a full copy of the consent forms for the January 2009 surgery are not associated with the file, administrative paperwork reflect that the Veteran provided informed consent and had the capacity to do so. The January 22, 2009, operative report reflects that this procedure was complicated by interoperative splenic capsule tears resulting in a complete splenectomy. After an “uneventful post-op[erative] course,” the Veteran was released to home on January 30, 2009. The Veteran returned to VA on February 1, 2009, with complaints of a fever, bloating, and body aches. An exploratory laparotomy revealed a bowel perforation due to stoma wound (fascial) dehiscence proximal to the anastomosis. This post-surgical complication resulted in an anastomotic leak, leading to an intrabdominal abcess, sepsis resulting in leukocytosis, residual surgical scarring from colostomy placement and takedown surgeries, candidemia, and oral candidiasis (oral thrush). To address the above complications, the Veteran was given a colostomy, and her midline incision was left to heal by secondary intention. Although her post-operative course was prolonged due to poor appetite and nutrition, the Veteran was released to her son’s care on March 3, 2009. Thereafter, the Veteran’s health was monitored closely over the next six months. While effective, the colostomy was inconvenient for the Veteran, so surgery was scheduled for a colostomy revision (takedown) and adhesiolysis in late-September 2010. Due to the Veteran’s ill health, including continued oral candidiasis resulting from the January 2009 surgery, the September 2010 colostomy takedown surgery was postponed until the following year. While the complete executed informed consent forms for the September 2011 colostomy takedown surgery are not available for review, administrative paperwork reflects that, while the Veteran “HAS decision-making capacity,” the Veteran’s son provided informed consent for this surgery as her power of attorney. The ileostomy takedown surgery was performed in late-September 2011, and the Veteran’s post-operative recovery was unremarkable for sequalae. 1. Entitlement to VA benefits under 38 U.S.C. § 1151 for additional disabilities, diagnosed as an anastomotic leak, intrabdominal abcess, and stoma wound dehiscence, caused by January 2009 hemicolectomy surgery performed at, and aftercare rendered by, the Iowa City VAMC is granted. The Veteran asserts that she is entitled to VA benefits under 38 U.S.C. § 1151 for additional disabilities, diagnosed as an anastomotic leak, intrabdominal abcess, and stoma wound dehiscence, caused by January 2009 hemicolectomy surgery performed at, and aftercare rendered by, the Iowa City VAMC. For the reasons discussed below, the Board agrees. The threshold matter in the Veteran’s case is whether the January 2009 surgery and aftercare resulted in any additional disability. In the present case, the AOJ obtained medical opinions from a physician in September 2019 that identified an anastomotic leak, intrabdominal abcess, and stoma wound dehiscence, resulting from the January 2009 VA surgery and aftercare. Thus, the first requirement of 38 U.S.C. § 1151 has been satisfied. The determinative issue in this case is whether the Veteran’s additional disabilities were the result of either (1) her own willful misconduct (2) 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 (3) an event that was not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361(d). The Board observes that the disjunctive language of the controlling law, meaning that, as long as the first criteria is not demonstrated, only one of the remaining two must be demonstrated. See Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned); Cf. Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). At the outset, the record for review is devoid of any evidence that the Veteran’s additional disabilities from the January 2009 VA surgery and aftercare are the result of her own willful misconduct. As such, the Board’s analysis will move on to whether her additional disabilities were the result 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. To the above point, the VA physician who provided the September 2019 opinions stated that the Veteran’s additional disabilities resulted from a lack of proper skill on the part of VA in completing the January 2009 surgery and providing aftercare. Specifically, the physician stated that the solon opening with suture was not done properly, resulting in leakage from the suture site. As an aside, the Board observes that the physician additionally stated that the additional disabilities outlined above were the foreseeable consequences to the January 2009 surgery by a reasonable healthcare provider in light of the Veteran’s comorbidities. For reasons unclear to the Board, the AOJ sought additional medical opinions addressing the Veteran’s appeal from a separate VA physician in September 2020. After a review of the complete file, another VA physician opined in September 2020 that the Veteran’s additional disabilities were less likely as not the result of any negligence, careless, lack of skill, or similar instance of fault on the part of VA or an event unforeseeable by a reasonable healthcare provider. As rationale, the VA physician cited the Veteran’s significant comorbidities and the completed informed consent forms which included “incomplete removal, injury to other organs or nerves, infection, bleeding, and scarring.” As the finder of fact, the Board has the responsibility of determining the probative weight of competing medical opinions. Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board notes that the September 2019 VA opinion cites to specific evidence reviewable in the Veteran’s file and provides rational based on accepted medical principles. As such, the Board concludes that the September 2019 VA opinion is highly probative of the matter before the Board. Bloom v. West, 12 Vet. App. 185, 187 (1999). In contrast, the September 2020 VA opinion relies heavily on the contents of the January 2009 informed consent forms, which are not available for review. To this point, there is no evidence in the Veteran’s file reflecting that she was told that the January 2009 surgery included the risks outlined by the September 2020 VA examiner, and thus, it appears that much of the September 2020 VA opinion was based on an inaccurate factual premise, rendering it of little probative weight in this matter. Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993). Moreover, there is no evidence that the Veteran signed such forms or that she had the capacity to understand and consent to such risks due to her cognitive impairment. In light of above, the Board finds that the most probative evidence reflects that the Veteran incurred additional disabilities, diagnosed an anastomotic leak, intrabdominal abcess, and stoma wound dehiscence, as a result of lack of proper skill on the part of VA in completing the January 2009 surgery and providing aftercare. As such, there is no need to further discuss the foreseeability of these additional disabilities. Accordingly, VA benefits under 38 U.S.C. § 1151 for additional disabilities, diagnosed as an anastomotic leak, intrabdominal abcess, and stoma wound dehiscence, as a result of the January 2009 hemicolectomy surgery performed at, and aftercare rendered by, the Iowa City VAMC is warranted. Entitlement to VA benefits under 38 U.S.C. § 1151 for additional disabilities, diagnosed as residuals of a splenectomy, sepsis resulting in leukocytosis, residual surgical scarring from colostomy placement and takedown surgeries, candidemia, and oral candidiasis, caused by January 2009 hemicolectomy surgery performed at, and aftercare rendered by, the Iowa City VAMC is granted. The Board notes that the above allowance does not include all identified additional disabilities incurred by the Veteran due to the January 2009 surgery and aftercare. Specifically, the Veteran voluminous VA treatment records dated from February 1, 2009, to the present reflect diagnoses of residuals of a splenectomy, sepsis resulting in leukocytosis, residual surgical scarring from colostomy placement and takedown surgeries, candidemia, and oral candidiasis, consequent to the January 2009 surgery and aftercare. Unfortunately, the VA physician who provided the probative September 2019 opinion did not address whether these disabilities were the result of VA negligence in completing the January 2009 surgery and providing aftercare; however, the Board concludes that such does not need to be addressed under the facts of the present case. Specifically, the September 2019 examiner’s opinion provided that an anastomotic leak, intrabdominal abcess, and stoma wound dehiscence, were the foreseeable consequences of the January 2009 VA surgery and aftercare. Notably, diagnoses of residuals of a splenectomy, sepsis resulting in leukocytosis, residual surgical scarring from colostomy placement and takedown surgeries, candidemia, and oral candidiasis, were not noted to be foreseeable consequences of the January 2009 surgery and aftercare. Indeed, there is no evidence within the Veteran’s file that stands for the premise that the Veteran was informed that the January 2009 surgery may result in any of the above-noted disabilities and/or that the Veteran consented to the surgery with a full understanding of such. As noted elsewhere in this decision, the Board does not have the benefit of reviewing the full, executed informed consent forms (if extant) and there is a strong possibility that the Veteran did not have the capacity to provide informed consent in these circumstances. To the extent that the September 2020 VA examiner opined that the Veteran did not incur any additional disability consequent to the January 2009 surgery and aftercare which was not reasonably foreseeable by a reasonable healthcare provider, this opinion is afforded little, if any, probative weight because such is based on the physician’s reliance on the contents of informed consent forms that are unavailable for review, if extant. As such, the only medical opinion of record addressing the foreseeability of these disabilities in the context of the January 2009 VA surgery and aftercare (the September 2019 VA opinion) is favorable to the Veteran’s appeal. In view of the above, there is no need to discuss the matters of VA’s carelessness, negligence, lack of proper skill, or error in judgment, regarding these additional disabilities. Simply put, the most probative evidence reflects that the Veteran incurred additional disabilities, diagnosed as residuals of a splenectomy, sepsis resulting in leukocytosis, residual surgical scarring from colostomy placement and takedown surgeries, candidemia, and oral candidiasis, as the result of an event not reasonably foreseeable consequent to January 2009 hemicolectomy surgery performed at, and aftercare rendered by, the Iowa City VAMC. There is also no medical opinion that specifically rejects this conclusion. As such, VA benefits under 38 U.S.C. § 1151 for additional disabilities, diagnosed as residuals of a splenectomy, sepsis resulting in leukocytosis, residual surgical scarring from colostomy placement and takedown surgeries, candidemia, and oral candidiasis, caused by January 2009 hemicolectomy surgery performed at, and aftercare rendered by, the Iowa City VAMC is warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.