Citation Nr: 21028103 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 11-18 085 DATE: May 10, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for disability resulting from a colonoscopy and polypectomy performed at the Boise VA Medical Center (VAMC) in February 2010 is granted. FINDING OF FACT The Veteran developed complications following a colonoscopy and polypectomy performed at the Boise VAMC in February 2010, to include additional surgical procedures. The complications were the result carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for compensation under 38 U.S.C. § 1151 for disability resulting from a colonoscopy and polypectomy performed at the Boise VAMC in February 2010 have been met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.102, 3.159, 3.361, 17.32. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1963 to January 1966. This matter was initially before the Board in March 2014, when it was remanded so that the Veteran could be provided a Board hearing. He testified before the undersigned Veterans Law Judge in September 2014. The Veteran's claim was subsequently denied in a December 2015 Board decision. The Veteran appealed that claim to the United States Court of Appeals for Veterans Claims (Court), which issued a May 2017 Memorandum Decision vacating the prior Board decision and remanding the case for further development of the record. The Board subsequently remanded the claim in January 2018, November 2019, and November 2020 for additional development. A January 2021 supplemental statement of the case was most recently issued, and the claim is once again before the Board. 1. Entitlement to compensation under 38 U.S.C. § 1151 for disability resulting from a colonoscopy and polypectomy performed at the Boise VAMC in February 2010. The Veteran argues that he is entitled to compensation under 38 U.S.C. § 1151 for residuals of complications resulting from a colonoscopy and polypectomy performed at the Boise VAMC in February 2010. For the following reasons, the Board finds that compensation is warranted. Under the current provisions of 38 U.S.C. § 1151 compensation shall be awarded for a qualifying additional disability or death of a veteran in the same manner as if such additional disability or death were service connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and- (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. From the plain language of the statute, it is clear that to establish entitlement to Section 1151 benefits, these factors must be shown: (1) new or additional disability; (2) that VA hospitalization, treatment, surgery, examination, or training was the cause of such disability; and (3) that there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from an event not reasonably foreseeable. The regulation implementing 38 U.S.C. § 1151, 38 C.F.R. § 3.361, in pertinent part also provides that (1) Care, treatment, or examination. 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 proximately caused a veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death (as explained in paragraph (c) of this section); 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. 38 C.F.R. § 3.361(d). In February 2010, the Veteran underwent a colonoscopy at the Boise VAMC. In the course of the procedure, the physician observed two large ascending colon polyps, which were removed. The following day, the Veteran noted right lower quadrant pain that progressively worsened. He subsequently underwent several tests to include a CT scan of the abdomen, which revealed inflammation in the area where the polypectomy had been performed. His physician counseled with him, and ultimately it was determined that surgical intervention was warranted. He underwent a right colectomy that was complicated by an anastomotic leak, and therefore, 12 days later the Veteran underwent an ileostomy and mucous fistula. The Veteran essentially asserts that his colectomy, ileostomy and mucous fistula came about as a result of negligent care during his February 2010 colonoscopy procedure. Various VA examinations and opinions have been completed. Initially a February 2013 VA intestinal surgery examination was provided to the Veteran. The opinion obtained did not properly address an 1151 claim but rather whether the Veteran's current disability was caused by an in-service injury. As the opinion lacks discussion of the evidence in light of the applicable standard it is accorded little probative value. An April 2015 opinion was subsequently obtained from an independent medical examiner (IME). The examiner ultimately concluded that none of the Veteran's long-term medical problems or complaints were due to carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the VA's part in furnishing treatment. In a January 2018 remand, the Board noted inadequacies in this April 2015 IME opinion. Therefore, this opinion is also accorded little probative value. Additional addendum medical opinions were obtained in February 2019 and July 2019. The February 2019 VA examiner concluded, after reviewing all of the available documentation, that the medical providers had acted appropriately and performed in a manner that is consistent with what a reasonable health care provided with the same level of education, training, and experience would have done. In an addendum opinion, the same examiner in July 2019 stated that the surgical standard of care (end ileostomy) was not met at the time of the surgical procedure and it was not met because the clinical circumstances at that time did not allow that type of procedure to be completed. In a November 2020 remand, the Board once again noted inadequacies in the medical opinions obtained and little probative value is accorded to the February and July 2019 addendum opinions. The Veteran submitted a February 2018 medical opinion from his VA treating physician Dr. T. He noted that the Veteran had come under his care when he was transferred from the Boise VA to the Cheyenne VA. He noted that the Veteran had undergone a colonoscopy in early February 2010 with polypectomy and bowel perforation that had required emergency surgery. The doctor noted that the Veteran had developed an anastomotic leak and had undergone a diverting ileostomy plus mucous fistula on February 16, 2010. He opined that the Veteran had received substandard surgical care while he was in Boise, but it was not immediately evident until he transferred his care to the Cheyenne VA. The VA doctor noted that since his discharge from the Boise VA the Veteran had been developing episodes of abdominal pain and partial bowel obstructive symptoms. He noted that he had been admitted May 10, 2010 and discharged after resolution of a high grade partial small bowel obstruction (SBO). On May 29, 2010 he noted that the Veteran had been admitted for what was discovered to be an intraabdominal abcess due to a perforation of the loop ileostomy instead of an end ileostomy as is the standard of care. It was noted that the Veteran had required multiple operative procedures and was extremely ill due to this "blow out of the efferent limb of the loop ileostomy." The physician noted that if the surgeon in Boise had done an anastomosis distally and protected the anastomosis with a proximal diverting loop ileostomy, this would have been the standard of care. He noted that the loop ileostomy with blind distal loop violates basic surgical principles and directly led to an open laparotomy and resection of the distal limb and drainage of the abscess. He concluded stating that he strongly feels that the Veteran was subjected to surgical error in placing the loop ileostomy that led to a prolonged period of recuperation and inability to work. A December 2020 VA medical opinion was additionally obtained. The examiner was the same examiner who authored the February and July 2019 opinions. He noted that the records show that the polypectomy was technically difficulty due to the position of the polyp. Based on the report of the procedure he concluded that it was foreseeable that later complications would be likely. He noted that the Veteran subsequently developed abdominal pain within 24 hours after the colonoscopy and returned to the hospital. Based on the sequence of events the examiner noted that it is clear that an injury to the bowel was foreseeable and it was foreseen by the treating surgeon who addressed this concern by promptly taking the patient to surgery to investigate the cause. He noted that with that surgery, a resection of a portion of the small and large bowel was performed with an end to end anastomosis. He noted that records initially show that the Veteran did well post-operatively but developed abdominal pain and was taken back to surgery on February 16, 2010. The Veteran was found to have an anastomotic leak. The VA examiner stated that an anastomotic leak after intestinal surgery is a known complication. The VA examiner noted that based on the sequence of events, it is clear that the treating surgeon foresaw the potential for an anastomotic leak and when the Veteran presented with abdominal pain twelve days after his initial surgery, the treating surgeon identified the potential problem and addressed it appropriately. After reviewing the records he concluded that there is no evidence that a reasonable health care provided with similar education, training, and experience would not have considered these to be ordinary risks of the treatment provided. The Board notes that quality assurance records pertaining to the Veteran's surgery have not been located, despite multiple attempts to retrieve these records. Based on a review of the entire record, the Board finds that the Veteran had additional disability as a result of his colonoscopy and polypectomy performed at the Boise VAMC in February 2010. Thus, the additional disability element of the claim has been met. See 38 U.S.C. § 1151 (a)(1); 38 C.F.R. § 3.361(b)-(d). The claims file also includes a February 2018 opinion from the Veteran's current VA treating physician essentially finding that he was subjected to surgical error in placing the loop ileostomy that led to a prolonged period of recuperation and inability to work. The Board finds that this opinion on the fault element weighed against any contrary opinions in the record shows that at least a state of equipoise has been reached. Therefore, after resolving reasonable doubt in the Veteran's favor with regard to the fault element, the Board finds that the additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the above described surgeries. As such the fault element of the claim has been met. See 38 U.S.C. § 1151(a)(1)(A); 38 C.F.R. § 3.361(d)(1). Given these findings concerning additional disability and fault, the Board finds it unnecessary to discuss whether the additional disability was the result of an event not reasonably foreseeable. See 38 U.S.C. § 1151(a)(1)(B); 38 C.F.R. § 3.361(d)(2). In sum, the Veteran experienced additional disability as a result of a colonoscopy and polypectomy performed at the Boise VAMC in February 2010, and such additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part. Therefore, after applying the benefit-of-the-doubt rule, the criteria for compensation under 38 U.S.C. § 1151 have been met here, and such compensation is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Clark, 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.