Citation Nr: 21032219 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 14-20 104 DATE: May 26, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for the additional disability of diabetes mellitus as a result of cholecystectomy surgery performed at Durham VA Medical Center in December 1982 is denied. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for the additional disability of osteomyelitis as a result of the Durham VA Medical Center prescribed medication Methotrexate is remanded. FINDING OF FACT The competent evidence is against a finding that the Veteran's diabetes mellitus was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA medical care or medical care by a VA contracted facility in furnishing hospital care, or an event which was not reasonably foreseeable, and there is no objective evidence that the condition is etiologically related to a 1982 cholecystectomy performed at a VA facility. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C. § 1151 for diabetes mellitus have not been met. 38 U.S.C. § §§ 1151, 5107; 38 C.F.R. § §§ 3.102, 3.361 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1980 to October 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in December 2018 and March 2021, on which occasions they were remanded for development. They have been returned to the Board for appellate review. The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to compensation under 38 U.S.C. § 1151 for the additional disability of diabetes mellitus as a result of cholecystectomy surgery performed at Durham VA Medical Center in December 1982 Under 38 U.S.C. § 1151, compensation shall be awarded for a qualifying additional disability or a qualifying death of a Veteran in the same manner as if such additional disability were service connected. 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, 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, and the proximate cause of the disability or death was either 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 an event not reasonably foreseeable. See 38 U.S.C. § 1151. The Veteran has averred that her type II diabetes mellitus was caused by a cholecystectomy performed at a VA facility in December 1982. The record reflects that the Veteran has a current diagnosis of type II diabetes, originally diagnosed in 1998. No treatment records explicitly link the condition to the December 1982 surgery in any way. The Veteran has averred that a drainage site associated with the cholecystectomy failed to heal properly, that she sought medical care for a purulent discharge from the site in 1998, that she continues to experience periodic flareups characterized by bursting and discharge at that site, and that she believes her diabetes to bear some etiological relationship to this issue. While the record reflects periodic problems at the aforementioned drainage site, including episodes where the site becomes enlarged, filled with fluid, and ruptures. However, there is no evidence these episodes, or any other aspect of the Veteran's gallbladder removal or residuals of that procedure, bear any etiological relationship to diabetes. A VA examiner who reviewed the medical file in October 2020 confirmed that there is no plausible link between a cholecystectomy and subsequent development of diabetes. The examiner explained that in addition to the absence of any plausible medical link, the diabetes diagnosis was furnished approximately a decade after the cholecystectomy, and there was no evidence in the record that the 1982 procedure involved any carelessness, negligence, lack of skill, or similar incidence of fault on the part of VA personnel, nor that any additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider, nor by any failure on the part of VA to timely diagnose or treat and disease or disability or that allowed it to progress. A March 2021 addendum opinion confirmed that the Veteran's onset of diabetes was "spontaneous and completely unrelated to gallbladder surgery." The Board accepts the VA examiners' expert assessments as the most probative evidence of record on the question of etiology in this case, and notes that they are uncontroverted by objective or other expert opinion evidence in this case. The Veteran has not advanced evidence outlining a plausible medical link between diabetes and her cholecystectomy in this case, nor has she explained how the procedure or VA followup treatment met the standards for a claim of this type, as summarized above. In sum, there is no basis for a finding that VA treatment, to include the 1982 cholecystectomy or followup treatment related thereto, bears any etiological relationship to diabetes mellitus in the Veteran's case. As such, the § 1151 claim must be denied. REASONS FOR REMAND 1. Entitlement to compensation under 38 U.S.C. § 1151 for the additional disability of osteomyelitis as a result of the Durham VA Medical Center prescribed medication Methotrexate The Veteran carries a current diagnosis of osteomyelitis, the evidence indicating the condition has manifested in ulcers of both feet. She avers that prescribed Methotrexate has caused or aggravated the condition. In support of the Veteran's contention, the record reflects numerous VA treatment notes suggesting the Veteran's use of Methotrexate may have resulted in anemia, which in turn may have contributed to osteomyelitis. Further, treatment records show providers advised the Veteran to discontinue use of Methotrexate shortly after the medication was started due to adverse effects including anemia. The VA examiner who conducted the March 2021 records review did not address adequately this evidence, opining only that osteomyelitis "was due to diabetes and its neuropathy only," without reconciling that finding with the aforementioned evidence. On remand, a new records review must be conducted, and an adequate opinion obtained regarding the Veteran's § 1151 claim based on the effects of VA prescribed Methotrexate. The matters are REMANDED for the following action: 1. Obtain a medical opinion from a qualified examiner who has not yet participated in this case respecting the Veteran's § 1151 claim for the additional disability of osteomyelitis as a result of VA prescribed Methotrexate. The examiner is directed to review the medical file in its entirety, including a copy of this remand. A notation that such a review has taken place should be included in the examination report. The examiner is then requested to opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran incurred additional disability, to include osteomyelitis, as a result of VA prescribed Methotrexate. For each additional disability identified, the examiner should opine as to whether it is at least as likely as not that the additional disability: (a) Was the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA? Or, (b) Was due to an event not reasonably foreseeable? In furnishing the above-requested opinions, the examiner must comment on VA treatment records reflecting a diagnosis of anemia after commencement of Methotrexate, the immediate cessation of treatment with Methotrexate thereafter, and any etiological link between anemia and osteomyelitis in this case. Any opinions expressed must be accompanied by thorough rationale. 2. Review the examination report to ensure it is in compliance with the directives of this remand. Implement corrective procedures if necessary. 3. Then, readjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sahraie, 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.