Citation Nr: 21029523 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-21 676 DATE: May 13, 2021 ORDER Compensation under 38 U.S.C. § 1151 for an acquired psychiatric disorder is denied. Compensation under 38 U.S.C. § 1151 for chronic constipation is denied. Compensation under 38 U.S.C. § 1151 for pelvic and abdominal pain with painful intercourse is denied. FINDINGS OF FACT 1. The Veteran did not incur any additional disability, to include a separate acquired psychiatric disorder, as the result of VA hospital care or treatment due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. 2. The Veteran did not incur any additional disability, to include chronic constipation, as the result of VA hospital care or treatment due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. 3. The Veteran did not incur any additional disability, to include pelvic and abdominal pain with painful intercourse, as the result of VA hospital care or treatment due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. Compensation under 38 U.S.C. § 1151 for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.361, 17.32. 2. Compensation under 38 U.S.C. § 1151 for chronic constipation are not met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.361, 17.32. 3. Compensation under 38 U.S.C. § 1151 for pelvic and abdominal pain with painful intercourse are not met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.361, 17.32. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1984 to October 1991. This appeal is before the Board of Veterans' Appeals (Board) from an April 2013 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. 1. Entitlement to Benefits Under 38 U.S.C. § 1151 for an Acquired Psychiatric Disorder 2. Entitlement to Benefits Under 38 U.S.C. § 1151 for Chronic Constipation 3. Entitlement to Benefits Under 38 U.S.C. § 1151 for Pelvic and Abdominal Pain with Painful Intercourse Under 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability or death 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 if (1) the disability or death was not the result of the veteran's willful misconduct, (2) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under the law administered by the Secretary, and (3) 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. 38 U.S.C. § 1151. In determining whether additional disability exists, the physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. Merely showing that a veteran received care and has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). To establish that 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 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 and that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider or that (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. 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. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e. given in orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b), as in emergency situations. 38 C.F.R. § 3.361(d)(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination 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). Additional disability or death 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). 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 disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). Turning to the evidence of record, in February 2001, VA treatment records indicate the Veteran underwent an exploratory laparotomy, myomectomy, and lysis of adhesions. After the procedure, the Veteran alleges she began "having pains for years." See September 2020 Board Hearing. In April 2004, private medical records indicate she underwent another exploratory laparotomy with a myomectomy and a hysterectomy due to pelvic pain and endometriosis. The discharge summary after the procedure indicates a "foreign object," later noted as a "thin translucent grey-tan piece of flexible plastic" was removed from the Veteran's uterus. In November 2009, a VA substance abuse discharge summary indicates she was diagnosed with substance abuse related to her PTSD, major depression, and PTSD. The record does not mention any mental health issues related to her surgical procedures. In September 2011, during a VA mental health assessment, she provided a subjective history of her mental health symptoms and at no point mentions her 2001 or 2004 surgical procedures. In a March 2012 rating decision, the RO granted the Veteran service connection for PTSD with a 50 percent disability rating. In September 2016, a report of general information indicates the Veteran subjectively reported she "suffers from fear and anxiety" as a result of her VA surgical procedures. In December 2016, a VA medical opinion as to the Veteran's constipation was entered into the claims file which included a review of the Veteran's complaints and medical history. The opinion noted the Veteran's prolonged history of bowel issues and drug use and specifically opined: Veteran's claim of painful bowel movements requiring laxatives is due to her chronic h/o cocaine use and not caused by or became worse as a result of the VA treatment, a disability resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel, a disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider, and/or failure on the part of VA to timely diagnose and/or properly treat the claimed disease. Also, in December 2016, a VA medical opinion as to the Veteran's pelvic and abdominal pain was entered into the claims file which included a review of the Veteran's complaints and medical history. The examiner noted that after the February 2001 procedure the medical record contained only one complaint of abdominal pain a few days later but it was determined to be related to gas. Furthermore, that after her April 2004 procedure, she only experienced "occasional lower abdominal pain and dyspareunia." Ultimately the opinion stated the "Atlanta VAMC did not fail to timely diagnose and/or properly treat the veterans claimed disability or disease allowing the disease or disability to continue to progress." The opinion noted the Veteran's "significant pelvic pathology and damage dating back to 1988" as the most likely cause of her pelvic and abdominal pain; specifically, the opinion states: The laparoscopy was converted to a laparotomy secondary to extensive adhesions which is appropriate. During this surgery the veteran was found to have significant adhesions suggesting pelvic inflammatory disease, uterine myomas and endometriosis. These are all common causes of lower abdominal pain, pelvic pain, dysmenorrhea, and painful sex. As to the alleged second layer of skin under the Veteran's breast that was not properly sealed during her February 2001 surgery, the opinion states: My review of the medical records from the Atlanta VAMC and the medical records from the Southern Regional Hospital reveal no second layer of skin under the veteran's breasts that was not completely closed during the VAMC Atlanta surgery... [the] operative report did not mention layers of scan under the veterans breast that were not closed. Moreover, the opinion determined no additional disability developed "from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel." Lastly, the opinion states, "It is my medical opinion that the Gore-Tex covering that was placed during her 2001 surgery at the Atlanta VAMC was not the cause of her disability and did not lead to a progression of her disability." Lastly, in December 2016, a VA medical opinion as to her acquired psychiatric disorder was entered into the claims file. The opinion stated it was at least as likely as not her surgical procedures caused an aggravation of her service-connected acquired psychiatric disorders. The opinion also stated the examiner was unable to determine, without resorting to speculation, whether the Veteran suffered from an additional disability as a result of VA negligence since, "This is outside the scope of my practice and expertise as a psychologist. In regard to any alleged failure on the behalf of the VA to properly diagnose or treat the Veteran, the examiner noted: "The Veteran was in treatment for substance abuse, PTSD, and depression at the time she found out. The VA did not fail to diagnose or properly treat the Veteran's mental illness." During the Veteran's September 2020 Board hearing she reiterated her belief that her abdominal pain and constipation were the result of negligence during her February 2001 VA surgery. In January 2021, the Veteran submitted a letter from her private physician which stated, "A foreign object was noted, removed and sent to pathology. The pathologist identified this material as a thing translucent grey-tan piece of flexible plastic. I have never encountered such material in surgical cases." The evidence of record also contains multiple routine treatment records for her acquired psychiatric disorder; however, none of the records make mention of her 2001 or 2004 surgical procedures. After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the preponderance of the evidence is against the claims for compensation under 38 U.S.C. § 1151 for (1) a separate acquired psychiatric disorder, (2) chronic constipation and (3) pelvic and abdominal pain with painful intercourse. The threshold question is whether the Veteran has any additional disability as a result of the Gore-Tex piece of plastic remaining in her system after her February 2001 VA surgical procedure. First, as to her acquired psychiatric disorder, the Board acknowledges the Veteran's statements that she experiences increased anxiety and fear as a result of her surgical procedures. However, the Board notes, she is service-connected for PTSD, an acquired psychiatric disorder that has anxiety has a hallmark symptom. Moreover, although it is entirely reasonable that she would experience increased or aggravated anxiety, to pursue compensation for these symptoms, the Veteran should pursue an increased rating claim. Additionally, the evidence of record does not contain any competent or credible medical evidence indicating the Veteran has developed a separate acquired psychiatric disorder as a result of VA negligence or lack of care. Indeed, the December 2016 VA examiner determined the VA did not fail to treat or diagnose the Veteran's mental disorders. Furthermore, although the examiner was unable to determine if the Veteran suffered an additional physical disability, that was not within the purview of the psychologist. Still, the examiner determined she suffered from "substance abuse, PTSD, and depression" at the time of the surgery and no other acquired psychiatric disorders were diagnosed. As such, the Veteran did not develop a separate acquired psychiatric disorder as a result of VA negligence or lack of care. This opinion comports with the evidence of record which contains multiple treatment records documenting her anxiety and fear and none of the records indicate the development of, or diagnosis of a separate acquired psychiatric disorder as a result of VA negligence or lack of care. Second, as to her constipation, the December 2016 VA opinion determined her issues with constipation and painful bowel movements were not due to the Gore-Tex and instead due to the Veteran's prolonged history of drug use. Moreover, the examiner cited to the Veteran's history of other prescription drugs that have the known side effect of constipation. Furthermore, the examiner determined that no additional disability developed as a result of carelessness or failure on the part of the VA. Additionally, the evidence of record does not contain any other competent or credible medical evidence that counters the December 2016 VA opinion. Third, as to her pelvic and abdominal pain, the December 2016 VA opinion noted that she did not report any significant pain or significant injury after the February 2001 procedure. To the extent the second procedure might have been caused by the Gore-Tex, the VA opinion determined that was not the case and instead cited to the Veteran's prolonged history of abdominal issues and procedures that took place well before February 2001. Indeed, it is reasonable to assume that her symptoms of pelvic and abdominal pain are part and parcel of her 30 percent rating for her service-connected right salpingectomy and left distal tuboplasty under Diagnostic Code 7611-7614. Moreover, the VA opinion determined there was no evidence of a second layer of skin under the Veteran's breast that was not properly sealed during the February 2001 procedure. Indeed, the operative report made no mention of the Veteran's breast. Furthermore, the VA opinion determined that no additional disability developed as a result of carelessness or failure on the part of the VA. Additionally, the evidence of record does not contain any other competent or credible medical evidence that counters the December 2016 VA opinion. Indeed, the only indication she has a newly diagnosed acquired psychiatric disorder or her constipation and her pelvic and abdominal pain are the result of negligence or negligent care on behalf of the VA are the Veteran's own claims of entitlement. However, as a layperson the Veteran is not competent to make any such medical determination. See Jandreau, 492 F.3d at 1372. As such, these unsupported assertions of VA negligence are of little probative value. Therefore, the Board finds the preponderance of the evidence is against finding the Veteran incurred any additional disability, to include a separate acquired psychiatric disorder, constipation, and pelvic and abdominal pain with painful intercourse, as the result of VA hospital care or treatment due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. Hence, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Accordingly, the Veteran's claims of compensation for an acquired psychiatric disorder, constipation, and pelvic and abdominal pain under 38 U.S.C. § 1151 must all be denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.