Citation Nr: 21030771 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-01 444 DATE: May 19, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for Crohn's disease is denied. Entitlement to compensation under 38 U.S.C. § 1151 for a mental condition is denied. FINDINGS OF FACT 1. The Veteran did not incur additional disability related to his Crohn's disease as a result of VA endoscopy/colonoscopy in March 2014. 2. The Veteran did not incur additional disability related to a mental condition as a result of VA endoscopy/colonoscopy in March 2014. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for Crohn's disease have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. 2. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for a mental condition have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1978 to April 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2015 rating decision of a Department of Veteran's Affairs (VA) Regional Office (RO). In June 2020, the Veteran testified before the undersigned Veterans Law Judge by virtual hearing. A transcript of the hearing is of record. In March 2021, the Veteran waived RO consideration of additional evidence added to the record since the December 2017 statement of the case. 1151 Eligibility The Veteran contends that he incurred additional disability in the form of worsened Crohn's disease and a mental condition as a result of VA endoscopy and colonoscopy on March 19, 2014. Specifically, he contends that he "woke up" during the procedure which resulted in distress, and that his ileum was "torn" as a result of negligence on the part of the VA caregivers which led to his having increased bleeding from his rectum and bowel incontinence. Pursuant to 38 U.S.C. § 1151, compensation shall be awarded for a qualifying additional disability as if such disability were service-connected. For the purposes of this section, a qualifying additional disability is one that was not the result of a veteran's own willful misconduct and one for which there is actual and proximate causation. 38 U.S.C. § 1151. To determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before care, treatment, examination, or services, with the state of the condition after such actions have been completed. 38 C.F.R. § 3.361(b). To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. 38 C.F.R. § 3.361(c). Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. Id. 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). The provision of training and rehabilitation services or CWT program cannot cause the continuance or natural progress of a disease or injury for which the services were provided. Id. The proximate cause of a disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361 (d). This may be shown through two means: (1) 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, treatment, or examination; or (2) by an event not reasonably foreseeable. 38 C.F.R. § 3.361 (d)(1)-(2). 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, treatment, or examination proximately caused a veteran's additional disability, it must be shown that the care, treatment, or examination caused the veteran's additional disability and (i) VA failed to exercise the degree of care that would be expected of a reasonable healthcare provider; or (ii) VA furnished the hospital care, treatment, or examination without the Veteran's, or in certain cases a designated representative's, informed consent. 38 C.F.R. § 3.361 (d)(1). 1. Entitlement to compensation under 38 U.S.C. § 1151 for Crohn's disease The record contains a private treatment record dated in April 2000 that noted the Veteran had a long history of ulcerative colitis and gastrointestinal bleeding. VA treatment records in 2010 note a diagnosis of Crohn's disease. He was seen with bloody stools and cramping in October 2013. A January 2014 treatment record noted that the Veteran reported having a flare-up of ulcerative colitis. In March 2014 he was seen with complaint of abdominal pain, diarrhea, and ulcerative colitis flare-up. The Veteran underwent a colonoscopy and endoscopy at the VAMC in Indianapolis on March 19, 2014. The informed consent form signed by the Veteran prior to the procedure noted that the known risks of the procedure included "tearing of the lining or wall of the esophagus, stomach or small bowel may be caused by the endoscope or by treatment. A severe tear may require surgery." It further noted that "moderate sedation will be used. Medications will be administered to decrease anxiety and discomfort during the treatment/procedure. These medications will be administered by a qualified practitioner. Patient response to some of these medications varies. Patients are expected to remain aware and responsive during the treatment or procedure." The colonoscopy report noted that "the risks and benefits of the procedure and the sedation options and risks were discussed with the patient. All questions were answered and informed consent was obtained." The report noted that the "anesthesia plan was to use moderate sedation/analgesia (conscious sedation)." The scope was then passed under direct vision. Throughout the procedure, the patient's blood pressure, pulse, and oxygen saturations were monitored continuously. The Colonoscope was introduced through the anus and advanced to the terminal ileum. The colonoscopy was performed without difficulty. The patient tolerated the procedure fairly well. The terminal ileum contained a single (solitary) four mm ulcer. No bleeding was present. Biopsies were taken with a cold forceps for histology. Ileum was traversed to 20 cm from IC valve. The colon (entire examined portion) appeared normal. Biopsies were taken with a cold forceps for histology. A localized area of mildly nodular mucosa was found in the rectum. Biopsies were taken with a cold forceps for histology. Non-bleeding external and internal hemorrhoids were found during retroflexion and were moderate. The endoscopy report noted that: The scope was then passed under direct vision. Throughout the procedure, the patient's blood pressure, pulse, and oxygen saturations were monitored continuously. The Endoscope was introduced through the mouth, and advanced to the second part of duodenum. The upper GI endoscopy was accomplished without difficulty. The patient tolerated the procedure fairly well. Patchy moderate mucosal abnormality characterized by erythema, erosion, granularity, inflammation and decreased vascular pattern was found in the 2nd part of the duodenum. Erythema was found in the first portion. Biopsies were taken with a cold forceps for evaluation of celiac disease. A single small sessile polyp with no bleeding was found in the duodenal bulb. The polyp was removed with a cold biopsy forceps. Resection and retrieval were complete. Two medium-sized sessile polyps with no bleeding were found in the duodenal bulb. The record shows that the Veteran continued to be treated for ulcerative colitis and Crohn's disease after the March 2014 procedures. A January 2019 treatment record noted that the Veteran "has been dealing with Crohn's disease for 15 years, he takes lomotile, asacol suppository and gets steroid shot when he has flare up...Has cramps and foul smelling stools, denies any blood, he does not want any blood work or imaging done at this time." A VA physician noted in April 2018 that the Veteran had had "20 admissions to VA hospital since 2007, 18 for abdominal pain and diarrhea, 2 admits to Psych (in 2009 and 2013) for suicidal ideation." The note further indicates: On multiple occasions he has signed out of the hospital [against medical advice], and his disruptive behavior is well documented. In March 2017 he signed out of this hospital AMA and had to be escorted out by the VA Police. He told me that "nothing has ever helped" his [ulcerative colitis], but this also is not accurate. It is documented that in 2007 he was on Imuran and prednisone with reduction in the frequency of diarrhea and severity of abdominal pain. Follow up colonoscopy showed no disease activity. Unfortunately he is either intolerant of or refuses the meds he has been offered for his UC over the last few years. He states that steroids are ineffective, but he has been on steroids on multiple occasions in the past. He perseverates about his ileum being "torn" during a colonoscopy in March 2014 and that his symptoms have been worse ever since. He states that he "woke up" during his colonoscopy and that "they should have stopped, that's how they tore me". I reviewed the note from that colonoscopy and there were biopsies taken, but no mention of any complications. He states that he later went to the VA Hospital in Fort Wayne and then was transferred to Lutheran Hospital where was told that his ileum was "torn". When I asked how this was determined, he was not able to tell me. He specifically stated that he did not have another colonoscopy at that time, but when I told him that to discover a "torn" ileum another C-scope or CT must have been done. Then he said they did another C-scope on him. When I asked what was done about his "torn" ileum, he was not able to tell me. I explained that a "torn" ileum would most likely require surgery, but again he was unable to provide any explanation of what treatment was recommended for his "torn" ileum. He also reports that he was recently at St. Vincent Hospital for similar symptoms of abdominal pain and diarrhea. He states that he was seen by GI and that he was supposed to follow up as an outpatient but that "things didn't work out". I spoke with the Northside GI office at St. Vincent this morning (4/18/17) and there is a notation on his chart there "Do not schedule with any physician due to belligerent behavior." A VA physician reviewed the record and provided an opinion in January 2019: There is a lack of sufficient objective evidence to establish a worsening of the Crohn's disease after the [March 2014] colonoscopy of record. Particularly, there is no medical evidence of any bowel perforation, increase in rectal bleeding or stooling or any change in treatment plan related to the colonoscopy. There is no evidence of VA personnel's failure to follow the standard of care. There is no additional disability noted; none from an event that could not have reasonably been foreseen by a reasonable healthcare provider. By this, though there is no evidence of failed anesthesia or bowel perforation as claimed by the veteran, these within itself are foreseeable complications from an endoscopic procedure; when signing for consent for this type of procedure, the patient is affirming that he/she understands this is agreeable with proceeding with the procedure. There is no objective evidence of any complication related to the [March 2014] colonoscopy of record. Therefore, there is no evidence of failure on the part of the VA to timely diagnose and/or properly treat the claimed disease or disability. Neither is there evidence of the VA allowing the disease or disability to continue to progress. The condition [by] nature remits and recurs. The hallmark of an exacerbation of inflammatory bowel disease (IBD) to include Crohn's disease is that of bloody diarrhea with mucous. In this the case the exacerbations are primarily the result of a poor compliance with the prescribed treatment. Particularly, and per the Chief of Gastroenterology of the treating VA facility, Charles J. Kahi, MD, Chief Gastroenterology; GI MD note, 05/15/2018 "Unfortunately, his IBD (inflammatory bowel disease) management has been hampered by his inability to maintain a therapeutic relationship with any of our physicians, including Dr. Bohm, our IBD specialist.". Therefore this examiner finds that the exacerbations of symptoms experienced by the veteran are not due to the treatment rendered by the VA. After careful review, the Board finds that the evidence fails to show that the Veteran has additional disability due to the VA administered endoscopy/ colonoscopy procedure in March 2014. The April 2018 VA physician's statement and January 2019 VA physician's opinion does not reflect evidence of additional disability in the form of torn ileum or any more severe or increased symptoms that were related to the VA procedures. They noted that the Veteran's Crohn's disease by nature tends to flare at times, and that the Veteran has not been compliant with prescribed treatments. In short, there is no competent or probative medical evidence of record showing an additional disability, claimed as torn ileum or worsened bleeding, related to the endoscopy/colonoscopy. Consequently, the Board need not reach the question of whether additional disability resulted from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault as a result of the VA procedures. However, it is noted that the January 2019 VA physician found no evidence of the same in her review of the file. The Board considered the lay evidence provided in support of establishing entitlement to VA compensation by way of Section 1151. The Board is not unqualifiedly rejecting lay evidence but, instead, finds that it is not sufficient to substantiate the claim. In general, and considering the claim under the Section 1151 theory, a determination as to the nature and etiology of the current claimed disability is medically complex in nature. See Jandreau v. Nicholson, 492 F.3d 1372, 1977 (Fed. Cir. 2007). Thus, the Veteran, as a layperson, is not competent to offer a medical opinion as to the cause of his rectal bleeding or abdominal pain, nor is he competent to determine whether he has a torn ileum, because he has not demonstrated that he possesses the requisite specialized knowledge. Such an opinion requires medical expertise, and therefore, the Veteran is not competent to offer a medical opinion regarding such a complex medical question. Despite the contentions otherwise, the Veteran has not submitted persuasive evidence showing he has additional disability related to VA endoscopy/colonoscopy in March 2014. A veteran bears the evidentiary burden to establish all material elements of a claim. See 38 U.S.C. § 5107 (a); Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). The competent evidence of record, to include the April 2018 physician's statement and January 2019 persuasive and probative medical opinion, weighs against granting the claim based on 38 U.S.C. § 1151. As the preponderance of the evidence is against the claim, the benefit-of the-doubt doctrine is not applicable here. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Therefore, compensation under 38 U.S.C. § 1151 is not warranted. 2. Entitlement to compensation under 38 U.S.C. § 1151 for a mental condition Prior to March 2014, the record shows that the Veteran had diagnoses of substance dependence and depression, not otherwise specified (December 2009); cocaine dependence, alcohol abuse, and depression (August 2010); and anxiety disorder (June 2011); and depressive disorder (August 2011). He was noted to have suicidal ideation in November 2009, October 2013, and November 2013. On March 14, 2014 he was noted to have "some depression [without suicidal ideation] regarding housing." The Veteran contends that he suffered mental distress due to waking up during his March 19, 2014 VA colonoscopy procedure. He testified that he begged the care providers to stop the procedure but that they kept on. He testified that he has had worsened psychiatric symptoms due to the incident. Both the endoscopy and colonoscopy reports note that "the anesthesia plan was to use moderate sedation/analgesia (conscious sedation)." A March 31, 2014 addendum noted that the Veteran "has a repeat EGD [upper gastrointestinal endoscopy] with Propofol scheduled on June 9th, 2014 for duodenal lesions that were not biopsied due to ineffective sedation." The Veteran was seen in the emergency room on the day of the colonoscopy reporting "I woke up during my colonoscopy today at the Indy VA and I need to speak with a doctor." On a March 27, 2014 social work note, the Veteran reported a "bad experience with his colonoscopy." A December 2014 VA mental health note reported that the Veteran "discussed a procedure that he had in Indy VA last March and that he woke up from the sedative in the middle of the procedure. Veteran states 'I haven't been the same since mentally.' 'I've been drinking and using cocaine more since this happened.' 'I have serious thoughts of hopelessness.' 'I don't want to harm anybody but I'm tired.' Vet discussed being scared to go back for follow-up and was even scared to come back to VA this time but stated he needed to tell someone." While the March 31, 2014 addendum surgical report referred to "ineffective sedation," the January 2019 VA physician's opinion found no evidence of VA personnel's failure to follow the standard of care, no complications of the procedures, and no evidence of failed anesthesia. Review of the medical evidence of record does not show an increase in the Veteran's VA mental health treatment following the March 2014 procedures. The Veteran has continued to be noted to have substance abuse and depression diagnoses, however the severity/frequency of such treatments/findings have not notably increased, and no new psychiatric diagnoses have been noted. While the Veteran appears to have experienced some discomfort or inability to tolerate the colonoscopy procedure without full sedation, the record does not establish that he incurred additional mental/psychiatric disability as a result. The record also shows that the Veteran has a longstanding mental health history which results in some belligerent and abnormal/inappropriate responses to situations. See the April 2018 VA physician's statement excerpted above. In short, there is no competent or probative medical evidence of record showing an additional mental/psychiatric disability related to the endoscopy/colonoscopy. Consequently, the Board need not reach the question of whether additional disability resulted from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault as a result of the VA procedures. However, it is noted that the January 2019 VA physician found no evidence of the same in her review of the file. The Board considered the lay evidence provided in support of establishing entitlement to VA compensation by way of Section 1151. The Board is not unqualifiedly rejecting lay evidence but, instead, finds that it is not sufficient to substantiate the claim. In general, and considering the claim under the Section 1151 theory, a determination as to the nature and etiology of the current claimed disability is medically complex in nature. See Jandreau v. Nicholson, 492 F.3d 1372, 1977 (Fed. Cir. 2007). Thus, the Veteran, as a layperson, is not competent to offer a medical opinion as to the cause of his mental health symptoms, nor is he competent to determine whether he has additional psychiatric diagnoses, because he has not demonstrated that he possesses the requisite specialized knowledge. Such an opinion requires medical expertise, and therefore, the Veteran is not competent to offer a medical opinion regarding such a complex medical question. Despite the contentions otherwise, the Veteran has not submitted persuasive evidence showing he has additional mental/psychiatric disability related to VA endoscopy/colonoscopy in March 2014. A veteran bears the evidentiary burden to establish all material elements of a claim. See 38 U.S.C. § 5107 (a); Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). As the preponderance of the evidence is against the claim, the benefit-of the-doubt doctrine is not applicable here. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Therefore, compensation under 38 U.S.C. § 1151 is not warranted. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Mazzucchelli, 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.