Citation Nr: 21028082 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-12 489 DATE: May 10, 2021 ORDER The claim for compensation under 38 U.S.C. § 1151 for gall bladder removal with gangrene, to include secondary conditions of liver and genitourinary disabilities, pancreatitis; acquired psychiatric disability, to include posttraumatic stress disorder (PTSD); and, hernia/scars of the abdomen based on VA treatment in 1997 and beyond at VA Medical Centers (VAMCs) in Ann Arbor and Detroit, Michigan is denied. FINDINGS OF FACT 1. Carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination has not been shown with regard to the treatment and diagnosis surrounding the care that resulted in the removal of the Veteran's gall bladder and the onset of gangrene and other symptoms. 2. The Veteran is not experiencing any nonforeseeable effects from his VA treatment, nor were any procedures alleged to have been undertaken without his consent. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for gall bladder removal with gangrene, to include secondary conditions of liver and genitourinary disabilities, pancreatitis; acquired psychiatric disability, to include posttraumatic stress disorder (PTSD); and, hernia/scars of the abdomen based on treatment at VA Medical Centers (VAMCs) in Ann Arbor and Detroit, Michigan have not been met. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from June 1974 to May 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran seeks compensation under 38 U.S.C. § 1151 for gall bladder removal with gangrene, to include secondary conditions of liver and genitourinary disabilities, pancreatitis; acquired psychiatric disability, to include PTSD; and, hernia/scars of the abdomen disability based on VA treatment in 1997 by VAMCs Ann Arbor and Detroit, Michigan. He maintains that VA misdiagnosed his overall gastrointestinal condition/abdominal pain in 1997 as a gallbladder malfunction and, as a result, he was forced to undergo emergency surgery in December 2008 to remove his gall bladder, which resulted in gangrene of the bile duct as well as other residuals. In addition, he contends that a December 2007 endoscopic retrograde cholangiopancreatography (ERCP), and endoscopic wire was inserted through the wrong bile duct cavity and punctured his pancreas resulting in a September 2011 surgery to repair the puncture and Whipple surgery to address the damaged bile duct. A Veteran disabled as a result of VA medical treatment may receive compensation for a qualifying additional disability in the same manner as if such additional disability were service-connected. 38 U.S.C. § 1151. An additional disability is a qualifying disability if: (1) it was not the result of the veteran's willful misconduct; (2) the disability was caused by VA hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the VA; and, (3) the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination, or the proximate cause of the disability was an event not reasonably foreseeable. 38 U.S.C. § 1151 (a). The Veteran has argued that he had a gall bladder and bile duct condition before December 2008, noting that he went to the VA emergency room numerous times between 1997 and 2008 with complaints of severe abdominal pain. The Veteran has argued that the surgical incisions in his abdomen were huge and did not close properly, resulting in a hernia repair in December 2014. He also argued that the reduction in the size of his pancreas resulted in an increase in his diabetes medication which resulted in a greater need to urinate. He has also alleged that he has experienced tonsil and throat infections and posttraumatic stress disorder (PTSD) as a result of the procedure. To address the Veteran's contentions, VA obtained a medical opinion in July 2013. The examiner was asked to review the care the Veteran had received from VA and to assess whether there was any misdiagnosis of stomach pain. The examiner was also requested to assess whether VA had exercised the degree of care that would have been expected of a reasonable health-care provider, or furnished care without the Veteran's consent. The examiner ultimately found no error in the care VA had provided, and specifically debunked several of the Veteran's allegations. The examiner concluded that the Veteran's pancreatitis was less likely than not to have been related to medical treatments provided by a VA facility, explaining that the Veteran had a documented history of mild chronic pancreatitis, as well as a history of excessive alcohol use, which could cause pancreatitis. It was noted that a September 2009 GI progress note indicated excessive alcohol use, and the Veteran had a history of gallstones which could cause pancreatitis. However, neither gallstones nor pancreatitis would be caused by medical intervention, and were likely the result of the Veteran's alcohol use. The examiner noted that the gallbladder removal and gangrene were also not failures in the care provided to the Veteran. The examiner noted that December 11, 2008 operative reports documented a pre-op diagnosis of acute cholecystitis. Records did document multiple evaluations for abdominal pain, and CT scans and ultrasounds were performed, without indicating significant abnormalities of the gallbladder until 2008 with positive Murphy sign indicating acute cholecystitis. The examiner explained that although the Veteran had been found to have gallstones on the previous examination, this finding alone was not diagnostic of acute cholecystitis. The examiner also observed that the delay in the surgery was on account of a cardiac stop following an abnormal cardiac evaluation. Thus, while gangrenous cholecystitis is a complication of delayed treatment, such a delay was not negligent in this case, as the Veteran needed stenting to be accomplished prior to the surgery. The examiner also failed to find evidence of liver damage, and he felt that urinary frequency was not a known complication of either a cholecystectomy or a Whipple procedure. Likewise scars and hernias were expected results of the Veteran's procedures. The examiner was also unable to find any record of a punctured pancreas, noting that multiple ultrasounds and CT studies did not indicate such abnormalities. The Board notes that the Veteran has been diagnosed with an anxiety disorder as a result of his general medical condition, but he has also been diagnosed with more than thirty health ailments, and there has not been a suggestion from a medical professional that the anxiety disorder is the result of an specific VA treatment or procedure. The Board has reviewed the Veteran's arguments, but notes that he lacks the medical training or expertise to provide a complex medical opinion, which is needed in this case, as the case turns on the standard of medical care provided. It was for that reason that VA obtained a medical opinion from a doctor based out of a separate facility from the two that had provided the Veteran's care. The Board appreciates the cost associated with obtaining a medical opinion in a case such as this, and for that reason VA provided a medical opinion free of charge. Unfortunately, the opinion did not support the grant of benefits, but such a fact does not on its own challenge the validity of the examiner's findings. To that end, neither the Veteran, nor his representative, has identified specific flaws in the examiner's findings or reasoning. Here, the Board is certainly sympathetic to the Veteran's contentions and can understand his frustration at the many medical problems which he has had to endure through the years. However, as was explained clearly by the examiner, the mere fact that the Veteran developed infections, scarring, and hernias is not indicative of negligence or careless on the part of VA. Rather, these were the expected results of the care that was necessary to address the Veteran's critical medical problems. Having reviewed the evidence of record, the Board has not found a basis upon which to award the benefit sought. Accordingly, compensation under 38 U.S.C. § 1151 for gall bladder removal with gangrene and other residuals is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.