Citation Nr: 1754182
Decision Date: 11/28/17 Archive Date: 12/07/17

DOCKET NO. 12-12 672 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut

THE ISSUES

1. Entitlement to benefits under 38 U.S.C.A. § 1151 for additional disability resulting from VA anticoagulant therapy.

2. Entitlement to service connection for a disability affecting the right hand and fingers, claimed as arthritis.

REPRESENTATION

Veteran represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

L. S. Kyle, Associate Counsel

INTRODUCTION

The Veteran served on active duty from September 1958 to September 1961.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut.

This matter was most recently before the Board in January 2016. At that time, the Board remanded the Veteran’s claim of entitlement to benefits under 38 U.S.C.A. § 1151 to the Agency of Original Jurisdiction (AOJ) for further development, but denied service connection for a disability affecting the right hand and fingers.

The Veteran timely appealed the denial of service connection for a disability affecting the right hand and fingers arthritis of the right hand and fingers to the United States Court of Appeals for Veterans Claims (Court). In December 2016, the Court issued a memorandum decision that set aside the Board’s prior denial and remanded the issue for readjudication.

This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of entitlement to service connection for a disability affecting the right hand and fingers is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.

FINDING OF FACT

Although VA anticoagulant therapy caused an increase in disability following an April 2011 hemorrhagic stroke resulting in cognitive impairment manifest by motor and cognitive deficits, the proximate cause of this additional disability was not carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care, treatment, or examination; or an event not reasonably foreseeable.

CONCLUSION OF LAW

The criteria for entitlement to benefits under 38 U.S.C.A. § 1151 for an additional disability resulting from VA anticoagulant therapy have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.361 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

Under certain circumstances, VA provides benefits for additional disability resulting from VA medical treatment in the same manner as if such disability were service-connected. See 38 U.S.C.A. § 1151. For a claimant to qualify for such benefits, the additional disability must not be the result of the claimant’s willful misconduct, and such disability must be caused by hospital care, medical or surgical treatment, or examination furnished to the claimant under any law administered by the Secretary, either by a Department employee or in a Department facility. 38 U.S.C.A. § 1151(a). For a claimant to be entitled to benefits when additional disability is caused by VA hospital care, medical or surgical treatment, or examination, the proximate cause of the additional disability must be: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care, treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C.A. § 1151(a)(1); 38 C.F.R. § 3.361.

To determine whether a claimant has additional disability, VA compares the claimant’s condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination upon which the claim is based to the claimant’s condition after such care, treatment, or examination is completed. 38 C.F.R. § 3.361(b).

To establish actual causation, the evidence must show that VA hospital care, medical or surgical treatment, or examination resulted in the claimant’s additional disability or death. Merely showing that a claimant received care and has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1).

The proximate cause of disability or death is the action or event which directly caused the disability or death, 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 hospital care, medical or surgical treatment, or examination proximately caused a claimant’s additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the claimant’s additional disability or death, and that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the claimant’s, or in appropriate cases, his representative’s, informed consent. 38 C.F.R. § 3.361(d)(1).

Whether the proximate cause of a claimant’s additional disability or death was an event not reasonably foreseeable is to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2).

Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner must explain in language understandable to the patient the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. The patient must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise if the proposed treatment is novel or unorthodox. The patient may withhold or revoke his or her consent at any time. 38 C.F.R. § 17.32(c).

To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b), as in emergency situations.

The specific requirements of 38 U.S.C.A. § 1151 and its implementing regulations were addressed in a recent precedential decision by the United States Court of Appeals for the Federal Circuit (Federal Circuit). See Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013). Specifically, the Federal Circuit incorporated those provisions into a three-element test, whereby 1) a claimant must incur an additional disability that was not the result of his or her own willful misconduct; 2) the disability must have been caused by hospital care, medical or surgical treatment, or examination furnished by VA or in a VA facility; and 3) the proximate cause of the additional disability must be carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA; or an event not reasonably foreseeable. Id. at 1377.

When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

Here, the record establishes that it is at least as likely as not that VA anticoagulant therapy caused an increase in disability following an April 2011 hemorrhagic stroke resulting in cognitive impairment manifest by motor and cognitive deficits; however, a finding that VA treatment resulted in additional disability does not end the analysis of a claim under 38 U.S.C.A. § 1151. The additional disability must also be found to be proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA; or an event not reasonably foreseeable. Viegas, 705 F.3d at 1377. In this case, the Board finds the preponderance of evidence is against a finding that the additional disability was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA; or an event not reasonably foreseeable.

VA has obtained three opinions regarding the Veteran’s claim. A February 2016 VA examiner, C.A.P., PA-C; the author of an October 2016 independent medical expert (IME) opinion and its December 2016 addendum, D.L.D., M.D., and the author a May 2017 IME opinion, B.A.D., M.D., all agreed the anticoagulant therapy provided by VA was consistent with the standard of care for managing the Veteran’s well-documented pulmonary embolism, with no evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, to include a lack of informed consent. These experts explained indefinite anticoagulant therapy was required given the clear association of pulmonary embolism with the Veteran’s prostate cancer. They further explained the anticoagulant therapy was well monitored and properly terminated following the April 2011 hemorrhagic stroke. In fact, the experts indicated failure to employ anticoagulant therapy to manage the pulmonary embolism would have constituted a breach of the standard of care. The experts also noted the Veteran was properly informed of the risks and side effects of anticoagulant therapy and provided proper instruction prior to the commencement of the treatment. See 38 C.F.R. § 17.32. Thus, the Board finds the preponderance of evidence is against a finding that the proximate cause of the cognitive impairment manifest by motor and cognitive deficits following the Veteran’s April 2011 hemorrhagic stroke was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, to include a lack of informed consent.

The Board also finds the preponderance of evidence is against a finding that the proximate cause of the cognitive impairment manifest by motor and cognitive deficits following the Veteran’s April 2011 hemorrhagic stroke was an event not reasonably foreseeable. The most probative evidence of record establishes the cranial bleeding associated with hemorrhagic stroke was not an unforeseeable complication of the anticoagulant therapy provided by VA. For instance, the February 2016 VA examiner, C.A.P., PA-C, noted the Veteran’s hemorrhagic stroke was not reasonably foreseeable, but she did not provide any rationale to support this statement. The author of the October 2016 IME, D.L.D., M.D., concluded it was not reasonably foreseeable that the additional disability occurred as a result of VA anticoagulant therapy given the location of the central nervous system bleed, but he did not specifically address whether the hemorrhagic stroke was a reasonably foreseeable event. However, the author of the May 2017 IME opinion, B.A.D., M.D., explained hemorrhage is a well-known complication of Coumadin therapy because its mechanism of action is the reduction of clotting. He further explained the forms of hemorrhage associated with Coumadin therapy, like that present in the Veteran’s case, can be reduced but not entirely eliminated by careful monitoring. B.A.D., M.D., concluded the risk of hemorrhage is the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures and was communicated to the Veteran prior to treatment. B.A.D., M.D., also cited medical literature to support his opinion. The Board finds the well-reasoned rationale provided by B.A.D., M.D., elevates the probative value of his opinion over the other opinions of record, which contain little to no rationale. As such, the Board finds weight of the evidence establishes hemorrhage and its complications was not an unforeseeable event at the time the Veteran commenced VA anticoagulant therapy.

In sum, the record establishes the additional disability that resulted from VA anticoagulant therapy was not proximately by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA; or an event not reasonably foreseeable. The experts who have provided opinions in this all concur that there is no evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, to include a lack of informed consent, with regard to the anticoagulant therapy provided by VA in the Veteran’s case. With regard to whether the additional disability was proximately caused by an event not reasonably foreseeable, the most probative evidence of record indicates hemorrhage and its complications was a foreseeable risk of anticoagulant therapy due to its mechanism of action. As the most probative evidence is against a finding that the additional disability in this case was proximately caused by an event not reasonably foreseeable, the benefit-of-the-doubt doctrine does not apply. Thus, the third element of a claim under 38 U.S.C.A. § 1151 has not been met, and the Veteran’s claim must be denied. See Viegas, 705 F.3d at 1377.

ORDER

Entitlement to benefits under 38 U.S.C.A. § 1151 for additional disability resulting from VA anticoagulant therapy is denied.

REMAND

The duty to assist requires VA to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with military service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2014); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). A claimant’s reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. Id.

Here, the record establishes the Veteran has a current disability affecting the right hand and fingers, although there is conflicting evidence regarding the exact nature of the disability. The Veteran claims his current disability is the result of a cold weather injury in service. VA recognizes that cold injuries may cause residual osteoarthritis. See 38 C.F.R. § 4.104, Diagnostic Code 7122 (2016) (listing the presence of osteoarthritis among the criteria for evaluating cold injury residuals); VA’S ADJUDICATION PROCEDURES MANUAL REWRITE (M21-1MR), pt. III, subpt. iv, ch. 4, § E(2)(a), (c) (explaining that exposure to cold may affect bones, leading to chronic symptoms and increased risk of developing arthritis); (d) (“The fact that a [non-service-connected] systemic disease that could produce similar findings is present . . . does not necessarily preclude service connection for residual conditions in the cold-injured areas”). The Veteran has also reported a continuity of symptoms since service. Thus, a VA examination is warranted regarding his claim of entitlement to service connection for a disability affecting the right hand and fingers. See McLendon, supra.

Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)

1. Schedule the Veteran for an examination to obtain a nexus opinion regarding his service connection claim for a disability affecting the right hand and fingers, claimed as arthritis.

The selected examiner must state the nature of the disability, commenting on all diagnoses in the record, and provide an opinion addressing whether it is at least as likely as not (a degree of probability of 50 percent or higher) the result of disease or injury in service, to include the Veteran’s reports of a cold weather injury in service.

The examiner is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for any opinion provided.

2. Readjudicate the issue on appeal. If the benefit sought on appeal remains denied, issue a supplemental statement of the case. Then, return the case to the Board, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).

______________________________________________
M. HYLAND
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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