Citation Nr: 21021191 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 17-40 868 DATE: April 12, 2021 REMANDED Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for rectal perforation is remanded. REASONS FOR REMAND 1. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for rectal perforation is remanded. The Veteran served on active duty from October 1950 to October 1954. This matter originates from an April 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board of Veterans’ Appeals (Board) in November 2019 and October 2020. It was remanded on both occasions for additional development. As discussed further below, the Board now finds that additional remand is necessary. The Veteran claims entitlement to compensation under 38 U.S.C. § 1151 for a disability characterized as rectal perforation sustained during a bowel training procedure performed in July 2013 at a VA health care facility. VA medical opinions were obtained in April 2015 and January 2020. The deficiencies in these opinions were discussed by the Board in its November 2019 and October 2020 remands. New VA opinions were obtained in December 2020 and January 2021.The Board now finds that these opinions are both substantively inadequate, as well as unresponsive to the Board’s October 2020 remand directives, thereby violating the Veteran’s right to substantial compliance with Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Further, the Board finds that an element of the November 2019 Board remand directives has not been complied with. A Veteran who suffers additional disability or death resulting from hospital care, medical or surgical treatment, or examination provided by a VA employee or in a VA facility is entitled to compensation for the additional disability or death “in the same manner as if such additional disability [or death]...were service-connected” if the additional disability or death 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 was proximately caused by “an event not reasonably foreseeable” was proximately caused by the provision of training and rehabilitation services by VA as part of an approved rehabilitation program. 38 U.S.C. § 1151(a)(1)(A), (B); see Viegas v. Shinseki, 705 F.3d 1374, 1377–78 (Fed. Cir. 2013). A July 31, 2013 surgical note reflects that the Veteran, a paraplegic with bladder cancer status post cystoprostatectomy and ileo conduit, was admitted to a VA health care facility on July 29, 2013 for annual examination. The Veteran was scheduled for a bowel training procedure on the morning of July 31, 2013. At approximately 6 or 7 a.m., he underwent bowel training, which included digital dilation of the Veteran’s rectum and gentle enema by catheter. The Veteran was found unresponsive during the session and a rapid response team was called. A CT scan was performed and showed anterior rectum perforation with free air surrounding the rectum. Surgery was then consulted. A July 31, 2013 post-operative note reflects that the following procedures were performed: rigid proctoscopy, exploratory laparotomy, end-sigmoid colostomy, and presacral drain placement. The note reflects that in the course of the rigid proctoscopy and exploratory laparotomy, providers discovered “tremendous adhesive disease from previous operation, with omentum and sigmoid colon stuck down in the pelvis. Providers were unable to adequately visualize the intraperitoneal rectum. The sigmoid colon was transected, and end-colostomy brought out through the left lower quadrant. Presacral drains were then placed. In an October 2019 written statement, the Veteran, through his representative, stated that no written informed consent was obtained prior to the July 31, 2013 bowel training procedure with digital stimulation. The Veteran further contended that the rectal perforation shown on CT scan is the result of “carelessness and . . . lack of proper skill” on the part of the VA treating providers who performed the bowel training procedure. The Veteran further contends that written informed consent was not obtained prior to the subsequent rigid proctoscopy, exploratory laparotomy, end-sigmoid colostomy, and presacral drain placement. In November 2019, the Board directed, in pertinent part, that all written informed consent forms completed or signed by the Veteran in relation to either the bowel training procedure or subsequent surgery be obtained and associated with the claims file. Signed consent forms related to the July 31, 2013 surgical procedure were associated with the claims file in January 2020. However, no written consent forms associated with the earlier bowel training procedure have been obtained or associated with the claims file. Therefore, to ensure substantial compliance with the Board’s November 2019 remand directives, the claim must be remanded to obtain and associate with the claims file any completed, written informed consent forms associated with the July 31, 2013 bowel training procedure. In October 2020, the Board directed that a VA medical opinion be obtained that addressed the following questions: a) Did the Veteran suffer additional disabilities, to include rectal perforation and colostomy, as a result of VA treatment from July 29, 2013 through his emergency surgery on July 31, 2013, and subsequent recovery care? If additional disability is found, each additional disability must be clearly identified. b) For each additional disability found, the provider should address the following: a. Whether it at least as likely as not (50 percent or greater) that that disability is the result of or caused by 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. In rendering the opinion, the provider should specifically address the digital stimulation performed during the Veteran’s bowel care. b. Whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider. c. Whether the additional disability was due to an event that was not reasonably foreseeable. The provider is advised that 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. It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154(a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. A mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor’s opinion. Stefl v. Nicholson, 21 Vet. App. 120, 125 (U.S. 2007). Once VA undertakes the effort to provide an examination when developing a claim, the examination must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). VA medical opinions were obtained in December 2020 and January 2021. The December 2020 VA examiner did not address whether additional disabilities were incurred by the Veteran during the course of his admission that began on July 29, 2013. The examiner stated that: “[c]onstipation is a common problem associated with spinal cord injuries and bowel training is the appropriate treatment. Chronic constipation is very common in elderly and immobile patients. Constipation and fecal impaction are common entities, particularly in elderly and bedridden patients. Fecalomas are collections of dehydrated, hardened stool. They rarely can cause colonic ischemia and/or stercoral perforation.” The examiner concluded that it was less likely than not that the Veteran’s rectal perforation and colostomy were caused by, or became worse as a result, of the actions of VA treating providers, to include carelessness, negligence, and/or lack of skill. However, the examiner did not articulate any rationale as to how or why they concluded that the rectal perforation was not the result of any actions by VA providers, but rather, implicitly, was the result of constipation. The RO sent the same remand directives to the January 2021 examiner. The examiner was, in pertinent part, directed to “please specifically address the digital stimulation performed during the Veteran’s bowel care.” The examiner responded “No.” It is unclear whether the examiner was refusing to answer the question, or whether “no” was intended as a substantive response. As a purported rationale for this ambiguous answer, the examiner provided a review of the surgical procedure performed following the discovery of the rectal perforation. Board finds that this does not constitute fully articulated, sound reasoning with regard to a question about a different procedure. In light of the foregoing, the Board finds there has not been substantial compliance with its November 2019 and October 2020 remand directives. Moreover, the substantive questions central to adjudication of this claim have not been answered. Thus, additional remand is necessary to obtain an adequate VA medical opinion. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any completed, written informed consent forms associated with the July 31, 2013 bowel training procedure 2. Obtain an addendum opinion from the provider who provided the January 2021 opinion. The examiner should review the claims file, including this remand, and should indicate in their opinion that they have reviewed both the body of this remand, and the remand directives, in full. The following opinions are requested: (a.) Did the Veteran suffer additional disabilities, to include rectal perforation and colostomy, as a result of VA treatment from July 29, 2013 through his emergency surgery on July 31, 2013, and subsequent recovery care? If additional disability is found, each additional disability must be clearly identified. (b.) For each additional disability found, the provider should address the following: 1. Whether it at least as likely as not(50 percent or greater) that that disability is the result of or caused by 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. In rendering the opinion, the provider should specifically address the digital stimulation performed during the Veteran’s bowel care. 2. Whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider. 3. Whether the additional disability was due to an event that was not reasonably foreseeable. The provider is advised that 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. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. C. Sametshaw 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.