Citation Nr: 21042693 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 15-06 043 DATE: July 13, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for malnutrition is denied. Entitlement to compensation under 38 U.S.C. § 1151 for bowel obstruction is denied. FINDINGS OF FACT 1. The Veteran's malnutrition was not proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination nor was it the result of an event not reasonably foreseeable. 2. The Veteran's bowel obstruction was not proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination nor was it the result of an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for malnutrition have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. 2. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for bowel obstruction have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1956 to June 1958. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In May 2018, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. These matters were previously remanded by the Board in June 2018, December 2019, October 2020, and April 2021. The issues are now back before the Board for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2019). 38 U.S.C. § 7107(a)(2) (2020). 1. Entitlement to compensation under 38 U.S.C. § 1151 for malnutrition is denied. 2. Entitlement to compensation under 38 U.S.C. § 1151 for bowel obstruction is denied. Under the applicable law, when a veteran suffers additional disability or death as the result of VA surgical treatment, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.358. For claims filed on or after October 1, 1997, the appellant must show that the VA treatment in question resulted in additional disability and that the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of additional disability was an event which was not reasonably foreseeable. See VAOPGCPREC 40-97; 38 U.S.C. § 1151. Compensation will not be payable for the continuance or natural progress of diseases for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.358(b)(2) (2017). Further, compensation is not payable for the necessary consequences of medical or surgical treatment properly administered with the express or implied consent of the veteran. 38 C.F.R. § 3.358(c)(3). The claimant must show additional disability that is actually the result of disease or injury, or an aggravation of an existing disease or injury, suffered as the result of hospitalization or medical treatment and not merely coincidental therewith. The mere fact of aggravation alone will not suffice to make the disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as the result of training, hospitalization, an examination, or medical or surgical treatment. See 38 C.F.R. § 3.358(c)(1), (2). The Veteran argues that due care was not provided by VA to ensure that his colon contents had not been released inside the abdominal cavity before he was sutured up by the VA physician. This caused serious infections which caused secondary conditions directly associated with the perforate colon and corrected surgery that followed. Specifically, he claims that following the surgery and complications, he developed malnutrition and bowel obstruction. By way of background, the Veteran had a history of prostate cancer and colon cancer. A September 2011 VA treatment record notes a history of colon cancer and plan for a colonoscopy to be completed in November 2011. A nurse explained the potential for infections. See September 2011 VA treatment record. A November 2011 VA record notes that the Veteran had a very rigid colon and the administers of the colonoscopy decided not to complete the exam because of the rigid colon and excessive looping. Nevertheless, a perforation was observed and surgery was immediately contacted. Specifically, the record noted an area of ulceration in the sigmoid. The Veteran had immediate surgery to fix the perforation. Following the surgery, the Veteran was hospitalized while he recovered and due to the infections from the surgery. Prior to the surgery, the Veteran signed Consent for Clinical Treatment. The known risks included a hole or tear in the colon and death. Several opinions were obtained to determine whether the Veteran had additional disability due to his colonoscopy, subsequent tear, and infections. For purposes of the analysis, the Board will assume that the Veteran had additional disability of malnutrition and bowel obstruction. See May 2021 VA Addendum Opinions. The December 2020 examiner explained that because the Veteran had a history of colon cancer, a follow-up colonoscopy was essential. Although the follow-up colonoscopy was delayed due to the Veteran's prostate cancer and the Veteran moving, the colonoscopy was eventually scheduled for November 2011. The examiner opined that not having a colonoscopy would have been negligent and not consistent with acceptable standards. Informed consent was obtained which included the risk of perforation and infection. Infection and perforation of the colon are risks associated with colonoscopy, which are increased with age, previous history of cancer and previous surgery. Nevertheless, the risk of recurrent colon cancer was high, and colonoscopy was essential. The Veteran did have a colon perforation which was immediately recognized and appropriately treated. In addition, the Veteran had subsequent infections which were also appropriately recognized and treated. The physician explained that colonoscopic perforation (CP) is widely recognized as one of the most serious complications following lower gastrointestinal endoscopies. Although CP is a rare complication, it is associated with a high rate of morbidity and mortality. This unpleasant complication could result in operation, stoma formation, instra-abdominal sepsis, prolonged hospital stay, and even death. Bacterial infections such as E. coli and Klebsiella can strike 1 in 1,000 patients after a screening colonoscopy, nearly 2 in 1,000 after a non-screening colonoscopy, and more than 3 in 1,000 after an endoscopy. The examiner opined that VA diagnosis and treatment was appropriate and timely, accepted appropriate protocols were followed and timely consults were obtained, the standard of care was met in this case. The examiner opined that it is less likely as not that subsequent infections to include bowel obstruction and malnutrition were caused by or became worse as a result of the VA treatment from carelessness, negligence, lack of skill, or similar incident of fault on the part of the attending VA personnel or additional 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 or disability allowed the disease or disability to continue to progress. In May 2021, the VA examiner additionally noted that Veteran's malnutrition and bowel obstruction were additional disabilities resulted from the CP complications. The examiner concurred with his December 2020 VA opinion noting the circumstances surrounding the history of the Veteran's procedure and that the Veteran's informed consent would have included risk of perforation and infection. He asserted that the Veteran did have a colon perforation which was immediately recognized and appropriately treated and that, in addition, the Veteran had subsequent infection(s) which were also appropriately recognized and treated. He opined that VA diagnosis and treatment was appropriate and timely, accepted appropriate protocols were followed and timely consults were obtained. Therefore, the standard of care was met in this case and it is less as likely as not malnutrition and bowel obstruction following a colonoscopy that resulted in CP complications was caused by or became worse as a result of the VA treatment, additional disability from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel or additional 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 or disability allowed the disease or disability to continue to progress. The Board acknowledges the Veteran's statements that due care was not provided by VA because they did not ensure that the colon contents had not been released inside the abdominal cavity before he was sutured up by the VA physician. This caused serious infections which caused secondary conditions directly associated with the perforate colon and corrected surgery that followed. The Veteran's statements as to cause of his infections are statements beyond the competence of lay witnesses. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). Therefore, the Board finds that the Veteran's statements to be of lesser probative value than the specific and reasoned opinion of the trained health care professionals that provided the opinions. Also, the Veteran submitted no medical opinion showing that his additional disabilities were due to and carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination nor has the Veteran submitted any medical opinion showing that the additional disabilities were a result of an event not reasonably foreseeable. Having carefully considered the evidence pertaining to the Veteran's claim, the Board concludes that the legal requirements are not met for compensation under 38U.S.C. §1151. There is no indication that the Veteran's additional disabilities resulted from disease or injury or an aggravation of an existing disease or injury suffered as the result of VA treatment. Simply put, the Veteran has submitted no competent evidence which tends to substantiate his contentions that he had additional disability as result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment to the Veteran. The evidence also does not show that his additional disabilities were the result of an event not reasonably foreseeable. (Continued on the next page) In the absence of competent evidence which demonstrates additional disability as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, the Board concludes that entitlement to compensation pursuant to 38 U.S.C. § 1151 for malnutrition and bowel obstruction is denied. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kaufer, Associate 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.