191015-37592
191015-37592
| Board of Vet. App. | May 28, 2021Background
- Veteran had active duty (Jan 1972–Dec 1973) and underwent VA gastrointestinal surgery on May 4, 2015 (partial large‑intestine resection for a cecal polyp).
- Post‑op GI bleeding and mesenteric vein thrombosis developed, prompting a June 2015 corrective partial small‑intestine resection and resulting surgical scarring.
- VA Regional Office denied 38 U.S.C. § 1151 claims in an April 2018 decision; the Veteran submitted new and material evidence within one year and appealed the September 2019 rating decision under the AMA (direct review).
- Prior VA medical opinions (Mar 2018 and Jul 2019) reached different conclusions about whether the thrombosis was foreseeable and whether VA was at fault; examiners’ rationales were limited.
- The Board found the prior opinions inadequately reasoned for adjudicative purposes and remanded to obtain a new, independent VA medical opinion addressing proximate causation (negligence) and foreseeability, including whether anticoagulation should have been prescribed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mesenteric vein thrombosis, subsequent small‑bowel resection, and scars are compensable under 38 U.S.C. § 1151 | VA surgical care caused complications; the thrombosis and second surgery were proximately caused by VA care and VA should have prescribed blood thinners | RO relied on VA examiners finding no negligence/fault and therefore no proximate cause under § 1151 | Remanded for further development: obtain new VA opinion to resolve negligence vs unforeseeability and the anticoagulation contention |
| Adequacy of prior VA medical opinions (2018, 2019) | Prior opinions are inconsistent and lack sufficient rationale to resolve foreseeability and fault | RO relied on those opinions to deny fault but did not have a sufficiently supported basis | Remanded: Board found the prior exams lacked adequate rationale (Bloom principle) and requested a new examiner review the file and reconcile discrepancies |
| Proper appellate/regulatory posture (AMA vs legacy) | Veteran sought Board review (direct review) after submitting new evidence to RO; appeals straddle legacy and AMA periods | AOJ treated the April 2018 decision as non‑final due to timely new evidence; RO issued a Sept 2019 decision now under AMA | Board proceeded under AMA direct review and remanded for readjudication/development; no finality or reopening determination needed |
Key Cases Cited
- Bloom v. West, 13 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty)