Citation Nr: 21022966 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-33 748 DATE: April 19, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for additional disability resulting from a hysterectomy performed at the Baltimore VA Medical Center (VAMC) in July 2011 is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has additional disability that was proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, or due to an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C. § 1151 resulting from a hysterectomy performed at the Baltimore VAMC in July 2011 have not been met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. § 3.361 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1989 to January 1993, with additional Reserve and National Guard service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in October 2018 and January 2021 and was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. 38 U.S.C. § 1151 Compensation is payable to a veteran for additional disability as if it were service-connected if the additional disability is not the result of his or her own willful misconduct and was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA, either by a VA employee or in a VA facility as defined in 38 U.S.C. § 1701(3)(A), and the proximate cause of the disability was: (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 not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing medical care caused the additional disability, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran’s additional disability; and that: (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, medical or surgical treatment, or examination without the veteran’s or, in appropriate cases, the veteran’s representative’s informed consent. 38 C.F.R. § 3.361(d)(1). 1. Entitlement to compensation under 38 U.S.C. § 1151 for additional disability resulting from a hysterectomy performed at the Baltimore VAMC in July 2011 The Veteran seeks compensation under 38 U.S.C. § 1151 for disability that she asserts was caused by a torn bowel that occurred during a July 2011 hysterectomy performed at the Baltimore VAMC. In her June 2014 claim, the Veteran asserted that following her discharge from the hospital after her hysterectomy, she was unable to have a bowel movement and had swelling in her stomach, which required her to return the emergency room. In a written statement accompanying her July 2015 notice of disagreement (NOD), the Veteran asserted that she experienced symptoms of nausea, vomiting, upset stomach, diarrhea, constipation, hemorrhoids, and abdominal pain, as well as excessive hair loss due to narcotic pain medications. She also indicated that she wore pads on a daily basis due to stool leakage. Upon review of the record, the Board finds that the preponderance of the evidence is against a finding that the Veteran has additional disability that was proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, or due to an event not reasonably foreseeable. VA treatment records show that the Veteran was diagnosed with gastroesophageal reflux disease (GERD) several years prior to her July 2011 hysterectomy. A June 2011 VA gynecological surgery note shows that the Veteran was advised of the risks of a hysterectomy, including bleeding, infection, and damage to surrounding structures, including bowel, bladder, ureter, and blood vessels. In July 2011, a VA treatment provider again advised the Veteran of the risks, benefits, and alternatives of the procedure, and she signed a consent form, which indicated that she was advised of the risks, side effects, and complications that may occur from a hysterectomy, including damage or injury to nearby structures, bowel obstruction, the need to make a larger cut to perform the procedure if it cannot be finished using a scope, the need for additional tests and treatment, and scarring, which may be painful or restrict movement. On July 28, 2011, the Veteran underwent a total hysterectomy. The record shows that she had previously had a myomectomy and because of that had some fairly dense adhesions to the abdominal wall. During the procedure, the gynecological surgeon observed extensive adhesions to the abdominal wall from the sigmoid colon to the uterus. During the opening of the abdomen and entry into the abdominal cavity, there was a four-centimeter serosal injury to the bowel, and assistance was requested from the general surgery team. The serosal injury was closed with sutures, and there was no evidence of narrowing of the sigmoid colon. After surgery, the Veteran was diagnosed with a postoperative ileus, which resolved prior to her discharge from the hospital on August 4, 2011. On August 8, 2011, the Veteran presented to the emergency room with complaints of severe abdominal pain and nausea, and it was noted that she recently underwent a total abdominal hysterectomy, which was complicated by a serosal bowel injury and postoperative ileus. A CT scan revealed post-surgical changes compatible with a recent hysterectomy, a small amount of free fluid within the pelvis, and a moderately dilated small bowel, likely reflecting ileus or possible partial bowel obstruction. The Veteran was admitted to the surgical intensive care unit for serial abdominal examinations, monitoring, and bowel rest. A nasogastric tube was placed for suction, and her abdominal pain began to improve. By August 10, 2011, the Veteran reported passing flatus, and the nasogastric tube was clamped. By August 12, 2011, she was advanced to a regular diet. The Veteran was discharged on August 14, 2011. On August 31, 2011, the Veteran called the VAMC to report that she was experiencing nausea and vomiting since her discharge from the hospital, and she also developed a painful hemorrhoid. Two days later, the Veteran reported that she was feeling better and that she would follow up with her gynecologist in four days. During her September 2011 gynecology follow-up appointment, the Veteran reported some rectal irritation and protrusion consistent with hemorrhoids due to constipation, for which she used preparation H. She reported rare nausea and vomiting after her surgery but stated that she was eating a regular diet now, having flatus and bowel movements, and was feeling well overall. The assessment was postoperative total abdominal hysterectomy with lysis of adhesions with small bowel oversew, complicated by postoperative ileus, but doing well now. The Veteran was prescribed medication for hemorrhoids and constipation. About two weeks later, she reported having abdominal pain and numbness in her abdomen along the incision from the surgery. A physical examination of the abdomen revealed slight tenderness to palpation and a well-healed incision. The assessment was continued abdominal pain and intermittent nausea, which may be related to iron, and hemorrhoids with a small fissure, which was to be treated symptomatically. An October 2011 VA gynecology treatment record shows that the Veteran denied any pain with respect to the hysterectomy performed in July. It was noted that her only complaints were occasional nausea associated with strong smells and hemorrhoids, which were present since the postoperative ileus. A November 2011 primary care note shows that the Veteran reported that she still did not feel well and was not able to eat the way she used to, noting that she had to eat a lot of soup. A December 2011 primary care note shows that the Veteran sought treatment for a cough with some sputum for the past three to four days with a slight chill and watery diarrhea since she ate at a party on Wednesday. She denied any abdominal cramps, nausea, or vomiting. The assessment was upper respiratory infection and one-week history of watery diarrhea, self-limited. A January 2012 primary care note shows that the Veteran reported recovering from her hysterectomy, but she still had some constipation, which was now controlled with just prune juice. VA treatment records dated February 2012 through October 2014 show no complaints of gastrointestinal problems other than GERD. The Veteran’s abdomen was consistently soft and non-tender, and bowel sounds were active. In September 2012, she denied any pelvic or abdominal pain, incontinence, nausea, vomiting, diarrhea, blood in stool, or constipation. In January 2013, she reported losing hair after she started taking Gabapentin, which treatment records show was prescribed for carpal tunnel syndrome. In February 2013, July 2013, and January 2014, she reported that her appetite was okay, and her bowel movements were regular. In August 2014, she denied any abdominal pain. In October 2014, the Veteran reported that her appetite was okay; her bowel movements were regular; and she denied any abdominal pain, nausea, heartburn, vomiting, blood in stool, diarrhea, or constipation. A November 2014 VA gastroenterology treatment record shows that the Veteran reported symptoms of mid-abdominal pain, which was not associated with change in food or bowel habits, and she denied symptoms of diarrhea, constipation, early satiety, vomiting, or weight loss. It was noted that she had a history of GERD, which she described as mild regurgitation of digested food with associated burping and hiccups. The treatment provider also noted that the Veteran had a history of a myomectomy for uterine fibroid dysmenorrhea in 2006 and subsequent adhesion of the small bowel to the anterior abdominal wall requiring oversew of the small bowel in 2011. The impression was that the Veteran’s pain was likely post-surgical adhesions. The Veteran underwent a colonoscopy in February 2015, which showed the sigmoid colon was tortuous with limited mobility likely secondary to intra-abdominal adhesions, but was otherwise normal. In May 2015, the Veteran underwent a VA examination, during which she reported episodes of diarrhea and constipation and stated that she wore adult diapers due to fecal incontinence. She also reported symptoms of GERD and indicated that she no longer tolerated foods she once enjoyed. The examiner indicated that the Veteran underwent a total abdominal hysterectomy in July 2011, and there were extensive adhesions resulting from a prior surgery, and a small bowel serosal laceration occurred during surgery. It was also noted that the Veteran had postoperative ileus and was hospitalized for a week in August 2011, at which time a nasogastric tube was reinserted. The examiner indicated that the Veteran’s current bowel complaints were suggestive of irritable bowel syndrome (IBS) and/or double bowel syndrome with constipation and diarrhea. When asked if the Veteran had any signs or symptoms attributable to any intestinal surgery, the examiner listed: (1) abdominal pain and/or colic pain due to double bowel syndrome with constipation, diarrhea, and cramping; (2) diarrhea; and (3) alternating diarrhea and constipation due to double bowel syndrome. The examiner opined that it was less likely than not that the Veteran’s current complaints were proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by a VA treatment provider. In support of this, the examiner explained, in relevant part: There is no indication that the [Veteran’s] surgical, operative, and postoperative care was not of the highest standard. Her prior surgery resulted in adhesions, and on entry into the abdomen, and mobilization of the bowel, a minor serosal tear occurred. There was no perforation, and no surgical correction required. She had a postoperative ileus which was successfully managed by nasogastric suction. Her postoperative pain medication resulted in extended ileus requiring rehospitalization and nasogastric drainage. There is no evidence of substandard, or negligent care during any part of her hospitalization for hysterectomy with menorrhagia and dysmenorrhea, with prolonged postoperative ileus secondary to a minimal serosal bowel tear. Her current complaints of GERD [and] irritable bowel syndrome are not a consequence or adverse sequela to her 2011 surgery. In a May 2015 addendum, the VA examiner clarified that “double bowel syndrome” was a dictation error in the examination report, and it should have read “irritable bowel syndrome.” The examiner indicated that the Veteran’s reported symptoms of IBS were not related to her hysterectomy, either as a complication or sequela. In support of this, the examiner explained that IBS is a common functional disturbance that affects the large intestine, and while the precise cause is unknown, factors that appear to play a role are muscle contractions in the intestine, nervous system abnormalities, inflammation in the intestines, severe infection, and changes in gut bacteria. The same VA examiner provided another addendum in May 2019, at which time he indicated that IBS is not a usual or foreseeable outcome of a hysterectomy. He also indicated that that when adhesions are dissected free, it is not uncommon for the serosa (the outer covering of the bowel) to be denuded and repaired intra-operatively, as was the case here. The examiner clarified that the Veteran’s serosal bowel tear was repaired intraoperatively during the hysterectomy; it did not require repeat surgery; and there is no evidence of additional disability resulting from the serosal tear. VA treatment records dated April 2015 through February 2021 show no complaints of gastrointestinal problems other than GERD and constipation on a few occasions. In September 2015, it was noted that the Veteran ate a regular diet and was continent of stool, and she denied any bowel problems, nausea, or vomiting. A September 2015 VA pharmacy note shows that the Veteran was prescribed stool softeners with hydromorphone, and the pharmacist counseled the Veteran on the regimen and discussed the fact that constipation was a side effect of the pain medication. In February 2016, it was noted that the Veteran’s constipation was caused by narcotic pain medication, which treatment records during the appeal period show were prescribed for orthopedic issues. In June 2016, the Veteran reported a good appetite and denied any abdominal pain, heartburn, stool changes, or blood in stool. In February 2017, she reported having a good appetite and regular bowel movements. In May 2017, she reported a history of constipation with some rectal bleeding after straining to have a bowel movement. In November 2017, she reported a good appetite and regular bowel movements. In January 2018, she reported a good appetite and regular bowel movements and denied any nausea, vomiting, diarrhea, or weight loss. In December 2018, she denied any nausea, vomiting, abdominal pain, or diarrhea. In June 2019, the Veteran denied any abdominal pain, nausea, vomiting, diarrhea, melena, or bleeding. In February 2021, another VA examiner reviewed the evidence of record and opined that there was no evidence to suggest that the Veteran’s claimed symptoms were caused by or became worse due to the VA treatment at issue. The examiner also opined that there was no evidence to suggest that there was any additional disability resulting from carelessness, negligence, or lack of proper skill on the part of VA; or that there was any additional disability resulting from an event not reasonably foreseeable; or that VA failed to treat or allow a condition to progress. In support of this, the examiner explained that a full review of the medical evidence demonstrated that the Veteran underwent a complicated abdominal surgery, which was complicated by multiple abdominal adhesions. The examiner indicated that while an area of the sigmoid colon was in fact perforated, it was immediately recognized and treated intraoperatively according to the standard of care. Additionally, the examiner indicated that IBS represents a discrete and separate disease process, which, by definition, is represented by clinical manifestations including diarrhea which are not affected by other abnormalities. The Board finds the opinions of the VA examiners, when considered together, to be highly probative and persuasive, as they are based on a review of the evidence of record and supported with reasoned medical explanations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Although the Veteran claims to have symptoms of nausea, vomiting, upset stomach, diarrhea, constipation, hemorrhoids, and abdominal pain, which she believes were caused by negligence on the part of VA treatment providers, as a lay person, she has not shown that she has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this regard, the questions of whether medical treatment fell below the degree of care that would be expected of a reasonable health care provider, or whether there was any additional disability that was not reasonably foreseeable, or whether her currently claimed symptoms are related to her hysterectomy all require medical expertise to determine. Thus, the opinion of the Veteran is not competent medical evidence. In sum, the most probative evidence shows that the Veteran does not have additional disability that was proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, or due to an event not reasonably foreseeable. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banister, 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.