Citation Nr: 0003742 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 95-29 800 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for gastrointestinal disease based on VA treatment in December 1993 and thereafter. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Horrigan, Counsel. INTRODUCTION The veteran had active service from May 1960 to February 1964 and from July 1964 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1995 rating action by the RO that denied the veteran's claim, as reflected on the title page. At the time of the June 1995 rating decision, the RO classified the issue as entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A.§ 1151 for a bile duct stent in the small intestine. The veteran appealed and initially requested a Board hearing at the RO in connection with this appeal. However, at a subsequent time, he changed his request to one for an RO hearing before a hearing officer. In April 1996 the veteran appeared and gave testimony at a hearing before a hearing officer at the RO, a transcript of which is of record. In February 1998, the case was remanded by the Board for further development. It is before the Board for appellate consideration at this time. FINDINGS OF FACT 1. The veteran had severe gastrointestinal disabilities for many years prior to December 1993. 2. A stent was found in the small bowel on a scout X-ray performed by the VA in April 1994. 3. The stent which dislodged from the common bile duct and which migrated to the small bowel was placed at a private hospital in September 1993. 4. VA treatment of December 1993 and thereafter did not result in an increase in severity of the veteran's pre- existing gastrointestinal pathology. 5. VA treatment in December 1993 and thereafter did not cause additional gastrointestinal pathology. CONCLUSION OF LAW The requirements for entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for gastrointestinal disease based on VA treatment in December 1993 and thereafter have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 1991 & Supp. 1999); 38 C.F.R. § 3.358(c) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background Private clinical records reveal that the veteran was hospitalized at the Mcleod Regional Medical Center on September 1, 1993 with complaints of a decline in energy, dark urine, jaundice, and abdominal pain. During the hospitalization, two unsuccessful attempts were made to perform an endoscopic retrograde cholangiopancreatogram (ERCP). A percutaneous cholangiogram was performed and revealed multiple ovoid filling defects in the common bile duct and possible choledocholithiasis. A drainage catheter was placed and the veteran was transferred to another private medical facility. At the time of discharge from this period of hospitalization on September 9, 1993, the diagnoses were obstructed bile duct secondary to common bile duct stone; hepatitis secondary to the obstructed bile duct, severe abdominal pain; urinary tract infection; and coagulation deficiency secondary to hepatitis. The veteran was hospitalized at the Medical University of South Carolina on September 9, 1993. It was then noted that the veteran had a history of a gunshot wound to the abdomen approximately 15 years earlier that resulted in an emergent cholecystectomy, and required a partial gastrectomy and a partial nephrectomy on the right. During the September 1993 hospitalization, the veteran underwent ERCP that showed a large diverticulum with the ampulla sitting on the floor of the diverticulum. The veteran underwent T-tube cholangiogram that showed multiple stones and a stricture in the area over the distal common bile duct, most likely post traumatic. Cannulation of the common bile duct with the sphinctertome was achieved. A sphincterotomy was performed over the guide wire and multiple stones were crushed with a lithotripsy. A balloon with a small basket was used to clear residual debris and stones. A further percutaneous T-tube cholangiogram showed a positional change of the percutaneous biliary catheter. There was still a high-grade obstruction of the common bile duct and residual filling defects within the proximal duct. Normal saline was thereupon flushed through the T-tube drain over night in the hope that any residual stones would pass through the sphincterotomy. A further T- tube cholangiogram thereafter showed similar findings without much change. Thereafter, a further ERCP was performed with placement of two number 10 stents and further stone extraction. It was reported that the veteran then underwent further percutaneous T-tube cholangiogram with much improved drainage of the biliary tree through the newly implaced stents. At discharge on September 15, 1993, it was reported that the veteran's condition was stable. The veteran was to be followed up by the VA on December 14, 1993 and he was to undergo a further ERCP at that time. The diagnosis at discharge was choledocholithiasis, acute ERCP with mechanical lithotripsy and stone extraction. On September 15, 1993, the VA saw the veteran as an outpatient. He requested medication for pain. He was not examined at that time. In late October 1993, the veteran was again seen when he ran out of pain medication. It was said that he needed the medication due to the stents that had been inserted in his liver during his September 1993 hospitalization. In early December 1993 the veteran was seen as an outpatient at the Mcleod Regional Medical Center. It was noted that the veteran was seen for follow up of obstructive jaundice. It was noted that he had a biliary stricture and a stent in place. His only complaint was mild discomfort in the right upper quadrant. He was said to have done so well that he had gained 10 pounds. On December 17, 1993, the veteran underwent a VA performed ERCP. The clinical record of this procedure indicated that a previously placed stent had migrated such that approximately 2 centimeters extended into the duodenum. After sounding the stricture with an overtube and pusher, a further stent was placed without difficulty alongside the previously placed stent. The radiographic report of this ERCP revealed a common bile duct stent that appeared to be located outside an area of opacification of the common bile duct and its intrahepatic ducts. The common bile duct stent could have been located in the cystic duct, accessory ducts, or outside the common bile duct. Subsequent images demonstrated placement of another common bile duct stent. During VA outpatient treatment in early March 1994 it was reported that films of the December 1993 ERCP were reviewed. It was noted that radiologic interpretation suggested that a stent was outside the common bile duct and that this impression was given because the system was underfilled. It was said that, prior to the stent implacement, a guidewire was advanced into the liver and the stent placed over the guidewire. If the entire biliary tree was filled, the stent would be seen to be lying within the common bile duct. In late March 1994, the veteran was seen follow up of his December 1993 stent placement. The veteran reported fatigue "like I have the flu". Evaluation of the abdomen was benign. An ERCP was scheduled for April to exchange his stents. When seen by the VA as an outpatient in late April 1994, it was reported that the veteran had no new complaints. He was still having intermittent abdominal pain secondary to stent placement. Later in April 1994 the veteran underwent a further ERCP performed by the VA. A scout film revealed a stent in the distal bowel. During the procedure, it was noted that there were two stents in the ampulla. In the course of the procedure, two straight stints were advanced across the stricture without difficulty. It was reported that there were four stents in place. A May 1994 X-ray showed the presence of three internal biliary catheters appropriately positioned in the right upper quadrant. There was fourth stent overlying the right sacral ala and likely resided in the small bowel. During treatment in June 1994, the veteran complained constant right-sided burning discomfort occasionally radiating into the back. It was said that the migrated stent was likely due to the September 1993 procedure. In early July 1994 it was noted that the migrated stent would be treated conservatively for now. During a VA examination conducted in July 1994 it was noted that the veteran had a common bile duct stricture with stent placement in September 1993, December 1993, and April 1994. He had a displaced stent in the intestine that could not be retrieved. The veteran was said to complain of recurrent problems secondary to the stent, including recurrent fevers, nausea, and abdominal pain. It was said that the veteran was to be hospitalized because of abnormal liver function tests and fevers. His alkaline phosphate was 404 and he had increasing AST and ALT values. Evaluation of the abdomen revealed normoactive bowel sounds with no guarding or rebound. The liver edge was 2 centimeters below the costal margin. Abdominal X-rays showed four straight stents overlying the expected location of the common bile duct. A fifth stent overlaid the central abdomen on a supine film and had descended to overlie the sacrum on the upright view. Location had not progressed since the comparison film was taken. There was no visceromegaly or appreciable soft tissue mass and there was no sign of intestinal ileus, obstruction, or perforation. The assessment was bile duct stricture, which was described as a recurrent problem that severely limited the veteran's daily living. He was noted to be unable to work and to have recurrent fevers and chills. It was reported that the stents had to be replaced every 4-6 months. During a brief VA hospitalization in July 1994 the veteran was monitored for fever. The veteran was afebrile and had no complaints. On a VA performed abdominal CT scan in August 1994 three bile stents were visible with the proximal tips in the portal and the distal tips in the duodenum. The liver was normal in size and configuration and there was overt bile duct dilation involving both the right and left lobes. An ectopic stent was visible in the small bowel anteriorly. There was no associated inflammatory process around the stent to suggest perforation. The duodenum and small bowel were otherwise grossly normal. There was no suppurative process visible in the liver to suggest a liver abscess and there was no other identifiable or drainable collection in the abdomen. After a VA ERCP in early October 1994, four stents were snared and retrieved by withdrawal of the scope. On the clinical report, the impression was distal common bile duct stricture due to pancreatitis that had been treated with placement of stents. It was said that there was currently no evidence of the stricture post-endoscopic therapy. A radiology report showed status post removal of four biliary stents with some residual mild dilation of the bile ducts with filling defects in portion of biliary tree probable representing air. One stent remained in the jejunum. It was subsequently noted that an endoscopic procedure of November 1994 failed to extract this stent. During VA outpatient treatment in September 1995, an abdominal CT scan revealed normal appearance of the liver and spleen. There was an irregular bulky appearance to the pancreatic head. The study could not differentiate between a neoplastic or inflammatory process. On a further CT study later in September 1995 there was mild inhomogeneity of the pancreatic head without evidence of pancreatic duct obstruction, mass, or enlargement. In October 1995 assessments were reported of choledocholithiasis, chronic pancreatitis, and abdominal pain of unknown etiology. In February 1996, assessments included chronic pain possibly secondary to retained stent. Several unsuccessful attempts at retrieval of the stent were reported. Subsequent treatment for abdominal pain is indicated. During an April 1996 hearing at the RO the veteran said that he had a bile duct infection as a result of his liver operations in 1993. He said that he began to notice a small degree of difficulty in December 1993. The veteran testified that a missing stent was spotted in April 1994 during a procedure to replace stents. He reported that the VA waited until November 1994 to attempt to retrieve it. The veteran said that attempts to flush out the stent were unsuccessful and that it kept moving back and fourth in the intestine, causing an annoying and aggravating pain. He also said that this stent was irritating his pancreas but could not be removed surgically due to scar tissue from a 1977 gunshot wound. The veteran further said that he was fine prior to the December 1993 procedure by the VA. On a March 1998 VA gastrointestinal examination, the veteran complained of pain in the epigastric and right upper quadrant areas that radiated down the back. The pain was described as unrelenting, sharp, and sometimes dull. He was on narcotic analgesics for the pain. A history of a migratory stent was noted. The examiner said that it was difficult to tell whether the stent now in the small intestine was initially placed either in the Medical University of South Carolina Hospital or in the VA hospital. The physical examination was remarkable for very thick dry skin that was highly suggestive of systemic sclerosis. The veteran was neither pale nor jaundiced. The abdomen was flat with right upper quadrant and midline scars. The liver and spleen were not palpable. There were normal bowel sounds heard. The examiner opined that the veteran's pain might be due to chronic pancreatitis that probably caused the initial stricture of the bile duct that required sphincterotomy and subsequent placement of biliary stents. In a May 1998 addendum, the examiner stated that after a review of the clinical records from Mcleod Hospital, it was clear that no biliary stents were implaced at that facility. In a further addendum of May 1999, the examining physician at the March 1998 VA examination noted that the veteran had a history of chronic pancreatitis with associated biliary tract stricture resulting in cholangitis in the early 1990s. The doctor opined that about four stents were placed in the biliary duct at the Medical University of South Carolina. Upon review of the medical records, the examiner did not come across any documentation that showed that stenting of the common bile duct was performed in the VA hospital. In essence, he said that he did not know whether stenting was done at the VA hospital. Since that was the case, it was therefore difficult to tell whether the stent that became dislodged and migrated to the small intestine was placed by the VA or by the Medical University of South Carolina. He further observed that the stent that migrated to the veteran's small intestine was still present in the small intestine. The examiner further said that that part of the small intestine is not readily accessible and, hence, the stent had not been removed. It was further noted that there were several stents placed in the biliary duct because of the stricture of the biliary duct. Although one became dislodged, it was very unlikely that the dislodged stent would have increased the severity of the stricture in the biliary duct. The presence of the stent in the small intestine could certainly cause abdominal discomfort or some other pathology, but, at this time, the symptoms exhibited by the veteran are due to chronic pancreatitis. The examiner also said that the dislodgment of the stent from the biliary duct with subsequent migration to the small intestine could not have been the result of treatment given at the VA facility. II. Legal Analysis Initially, the Board notes that when this case was remanded to the RO in February 1998, the medical records necessary to determine whether the veteran's claim was "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) were not in the claims file. Moreover, this case presented complex questions of a medical nature that required medical expertise to answer. Therefore, in February 1998 the Board essentially found that this claim was potentially well grounded. However, considering the complexity of the questions raised, the Board determined that it was likely that after all the pertinent medical records were obtained, a medical opinion would be required. In requesting the medical opinion in an effort to avoid the possibility of multiple remands, the Board in effect, well grounded the claim. The development requested by the Board in the February 1998 remand has been completed and the Board is now satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a). Accordingly, the Board will now consider the veteran's well- grounded claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for gastrointestinal disease based on VA treatment in December 1993 and thereafter on the basis of a review on the merits. In pertinent part, 38 U.S.C.A. § 1151 provides that where any veteran shall have suffered an injury, or an aggravation of an injury, as a result of VA hospitalization, medical or surgical treatment, not the result of the veteran's own willful misconduct, and such injury or aggravation results in additional disability or death, compensation shall be awarded in the same manner as if such disability or death was service connected. The regulation implementing that statute, 38 C.F.R.§ 3.358, provides, in pertinent part, that compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran, or in appropriate cases, the veteran's representative. "Necessary consequences" are those which are certain to result from, or intended to result from the examination or medical or surgical treatment administered. 38 C.F.R.§ 3.358(c)(3). The Board also notes that 38 C.F.R.§ 3.358, provides, in pertinent part, that in determining if additional disability exists, the beneficiary's physical condition immediately prior to the disease or injury on which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. As applied to medical or surgical treatment, the physical condition prior to the disease or injury will be the condition that the specific medical or surgical treatment was designed to relieve. Compensation will not be payable for the continuance or natural progress of disease or injuries for which the hospitalization etc., was authorized. In determining whether additional disability resulted from a disease or injury or an aggravation of an existing disease or injury suffered as a result of hospitalization, medical or surgical treatment, it will be necessary to show that the additional disability is actually the result of such disease or injury or an aggravation of an existing disease or injury and not merely coincident therewith. 38 C.F.R. § 3.358 (b), (c)(1). The veteran has asserted that he has constant and severe abdominal pain due to a stent which migrated from his common biliary duct to the small intestine and that the migration of this stent is due to the failure on the part of the VA to extract the stent prior to its displacement from the common bile duct and its migration to his small intestine. The adjudicative questions before the Board are whether the VA treatment for the veteran's gastrointestinal disorders beginning in December 1993 resulted in an increase in severity of the then preexisting underlying gastrointestinal pathology or whether it caused additional gastrointestinal pathology which was not present prior to December 1993. The answer to both questions is, in the opinion of the Board, in the negative. Review of the record reveals that the veteran had severe gastrointestinal disability long before the VA initiated treatment for gastrointestinal disability in December 1993. The record shows that the veteran sustained a gunshot wound to the abdomen in 1977 that necessitated an emergent cholecystectomy, a partial gastrectomy, and a partial nephrectomy on the right. In September 1993 he was hospitalized at two private hospitals for the treatment of a stricture of the common bile duct of the liver. During the second private hospitalization in September 1993 the veteran underwent an ERCP with mechanical lithotripsy and stone extractions. Stents were initially placed within the common bile duct on that occasion and the veteran was provided pain medication due to the implacement of these stents prior to the commencement of VA treatment in December 1993. After further VA performed ERCPs in December 1993, the veteran complained only of flu like symptoms the following March and April. In April 1994, a VA X-ray was performed prior to the replacement of the veteran's stents in the common bile duct and that study initially noted a stent in the veteran's small bowel. Attempts to extract that stent have been unsuccessful. The above evidence shows that the veteran was experiencing abdominal pains, similar to those of which he now complains, beginning on the date of his discharge from the private hospital in September 1993, and three months before VA treatment commenced and more than six months prior to the discovery of the stent in his small intestine. In addition, recent VA examination reports, as well as the medical opinion of a VA physician, indicate that the veteran's current abdominal pain is not due to the stent displaced into his small intestine but is caused by chronic pancreatitis. The VA physician has also opined that this chronic pancreatitis is the likely cause of the common biliary duct obstruction which necessitated the veteran's initial private hospitalizations in September 1993, as well as the VA treatment which commenced the following December. There is no evidence that indicates that the veteran's chronic pancreatitis or the resultant common bile duct stricture were worsened by VA treatment. Moreover, a review of the evidence does not show that the stent currently lodged in the veteran's small intestinal was originally placed by the VA, and also does not demonstrate that VA treatment was, in any sense, a factor in the displacement of this stent. We note in this regard that a VA physician has recently reviewed the entire record and concluded that dislodgment of the stent from the biliary duct with subsequent migration to the small intestine could not have been the result of treatment given at the VA facility. In view of the above, and after a review of the applicable statute and regulation, the Board concludes that the preponderance of the evidence is against the claim. Since that is the case, compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for gastrointestinal disability as a result of VA medical treatment in December 1993 and thereafter are not warranted. ORDER Compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for gastrointestinal disability as a result of VA medical treatment in December 1993 and thereafter is denied. BRUCE E. HYMAN Member, Board of Veterans' Appeals