Citation Nr: 22014537 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 16-06 065 DATE: March 14, 2022 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for liver injury due to gallbladder removal is denied. FINDING OF FACT The evidence of record does not indicate that the Veteran has an additional disability of the liver as a result of VA medical treatment or any finding of fault on the part of VA. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for liver injury due to gallbladder removal have not been met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1979 to August 1979 and June 1980 to October 1980. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2021. The hearing transcript is of record. At such time, the undersigned held the record open for 60 days for receipt of additional evidence. As the 60-days have expired, the Board will proceed to adjudicate the claim. Entitlement to compensation under 38 U.S.C. § 1151 for liver injury due to gallbladder removal Under 38 U.S.C. § 1151, compensation shall be awarded for a qualifying additional disability of a veteran in the same manner as if the additional disability were service connected. The additional disability qualifies for compensation if it is not the result of the veteran's own willful misconduct, but was instead caused by VA hospital care, medical or surgical treatment, or examination. Additionally, the proximate cause of the additional disability must be attributable to: 1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or, 2) an event not reasonably foreseeable. 38 U.S.C. § 1151. To determine whether an additional disability was caused by medical treatment, VA compares the veteran's condition immediately before the beginning of such treatment to his condition thereafter. 38 C.F.R. § 3.361(b). To establish causation, evidence must show that the VA medical treatment resulted in the veteran's additional disability. The mere showing of an additional disability after receipt of care, treatment, or examination is insufficient to establish cause. 38 C.F.R. § 3.361(c)(1). The continuance or natural progress of a disease or injury for which treatment was furnished is not causation 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 caused by the veteran's failure to follow properly given medical instructions is not causation. 38 C.F.R. § 3.361(c)(3). The proximate cause of 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). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment proximately caused a veteran's additional disability, it must be shown that the medical treatment caused the additional disability, and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or, that VA furnished the medical treatment without the veteran's informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d)(2). The Veteran contends that following gallbladder surgery in February 2014, he experienced pain and fluid build-up. He contends that his liver was damaged due to surgery, causing a bile leak, and that this was unsuccessfully repaired with a chemical seal that subsequently dissolved. He contends that his body rejects certain chemicals, which is documented in his medical record. He contends that his liver tear is regularly monitored. See June 2014 VA Form 21-0820 (report of general information); August 2021 Board hearing. Based on a review of the record, the Board finds the evidence persuasively weighs against the Veteran's claim and the claim must be denied. The Board also notes that current review reveals that the RO did not address direct service connection and the Board's review is limited to the claim under 38 U.S.C. § 1151. The January 2015 VA examiner provided a medical opinion based on a review of the available evidence that opined against the claim. The examiner opined that there is no evidence of additional disability as a result of the Veteran's cholecystectomy or any other VA treatment. The examiner reasoned that the Veteran had previously undergone a colonoscopy and there is no indication in the record that a repeat colonoscopy was indicated or recommended prior to his cholecystectomy. The cholecystectomy was medically indicated and this fact, as well as the discussion regarding the reasons for it with the Veteran, is well-documented in the record. The post-operative fluid collection that required drainage is a rare event and might not have been the type of complication that would normally be specifically discussed when addressing the risks of surgery. However, this complication was identified and properly treated, and the record does not contain evidence that there is any residual disability as a result of this complication, or that his liver was damaged or is presently at risk. The examiner further reasoned that the Veteran was evaluated in 2013 for a 4-day history of black stool, which resolved. He was properly treated, to include an upper gastrointestinal endoscopy (EGD) and colonoscopy, which showed a 5-millimeter (mm) polyp, which snared and constituted a tubular adenoma, and rectal polyps. No other significant pathology was found. The EGD findings included mild acute inflammation at the esophageal/gastric junction without Barrett's condition. A gastric mass was found, and a CT scan was performed which showed not a gastric mass but a porcelain, or calcified, gallbladder. He was appropriately referred for surgical consultation given this finding. The examiner further reasoned that the surgical consult dated November 2013 set out the medical history and indicated a discussion with the Veteran regarding the need for the cholecystectomy. The Veteran subsequently underwent laparoscopic cholecystectomy in February 2014, following appropriately obtained and documented informed consent. This was a planned elective procedure performed for a medically indicated reason; the record does not show that the surgery was not indicated or otherwise unnecessary. The Veteran did have a minor complication of fluid collection in the gallbladder fossa which was successfully drained under CT guidance in May 2014; 30 milliliters (mL) of non-infected fluid was removed and a follow-up CT scan in June 2014 showed no recurrent fluid collection and no indication of any leakage of the biliary tree or any liver abnormality. Accordingly, there is no evidence of any residual disability following cholecystectomy. The examiner further reasoned that regarding the Veteran's contention that his liver is at risk, the record does not support this contention. All imaging of record has shown the liver to be normal. Liver function tests were noted to be normal in follow-up labs in July 2014. A July 2014 primary care note does not indicate any residual symptoms or issues related to the drainage of post-operative abdominal fluid collection; liver enzymes and a complete blood count dated July 2014 were all normal. The note did not mention a colonoscopy repeat but did note that an EGD would be the next step if additional gastroesophageal reflux disease (GERD) symptoms were noted. Thus, the examiner determined that there is no evidence of any additional disability as a result of the Veteran's cholecystectomy or any other VA treatment; VA medical services were not the proximate cause of any additional disability as a result of fault (carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault); and VA did not fail to exercise the degree of care that would have been expected of a reasonable healthcare provider. The Board finds that the January 2015 VA medical opinion is probative because it is based on an accurate medical history and provides explanations that contain clear conclusions and supporting data. Here, the medical opinion found no additional disability, having compared the Veteran's condition immediately before the gallbladder procedure and following such care. Specifically, the liver was found to be normal pursuant to liver function testing obtained several months after the procedure. As such, the first element of analysis, the existence of an additional disability, is not satisfied. Accordingly, there is no legal basis upon which to grant the claim. Additionally, the medical opinion addressed the fluid collection that occurred following gallbladder removal, and the question of VA fault in this matter. The medical opinion did not find that VA failed to exercise the degree of care that would have been expected of a reasonable healthcare provider. The examiner noted that this was a remote risk, properly identified and treated. The examiner noted that it was a minor complication that was successfully treated (drained) with no recurrence or any bile leakage or liver abnormality. As discussed above, fault may also be established by a failure to show the provision of informed consent. The Veteran has not set forth any arguments related to a lack of informed consent as to the gallbladder removal or any other VA medical treatment. Moreover, as the January 2015 VA medical opinion sets out, the Veteran was properly informed of the reasons for the procedure and the record indicates informed consent, properly obtained and documented. Furthermore, as set out above, during the August 2021 Board hearing, the Veteran indicated that he would submit a favorable opinion in support of his claim and the record was held open. See also February 2016 VA Form 9. Here, the Veteran was given the opportunity to submit additional evidence to support his claim, to include a favorable medical opinion. Having afforded such opportunity, the Board must adjudicate the claim on the existing record. The Board acknowledges that the Veteran submitted medical records, received by VA in November 2021. However, the abdominal ultrasound dated April 2017 notes a clinical impression of no interval change or new abnormality; the comparison was taken with May 2014 imaging. Without more, this information is insufficient to support a grant. Based on the evidence of record, the Board finds that there is no additional disability, or specifically, any liver injury, due to VA medical treatment or any fault on the part of VA in furnishing treatment. The Board has considered the Veteran's assertions. However, the Veteran is not competent to provide medical opinions regarding these issues, which are medically complex. He does not have the requisite specialized knowledge, training, or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). His assertions were thoroughly addressed by a VA examiner who found them unsupported by the record. As the evidence weighs persuasively against the claim, the benefit-of-the-doubt doctrine cannot be applied. 38 U.S.C. § 5107(b). Thus, entitlement to compensation under 38 U.S.C. § 1151 for liver damage due to gallbladder removal is not warranted. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Minaya, 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.