Citation Nr: 1754191
Decision Date: 11/28/17 Archive Date: 12/07/17

DOCKET NO. 11-27 501 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina

THE ISSUE

Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a liver disorder.

REPRESENTATION

Appellant represented by: The American Legion

ATTORNEY FOR THE BOARD

Robert A. Elliott II, Associate Counsel

INTRODUCTION

The Veteran served on active duty from August 1971 to May 1981.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

FINDING OF FACT

The preponderance of the evidence demonstrates that the Veteran did not undergo an additional disability as a result of the VA prescribed medication for service-connected conditions that was proximately due to VA’s 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.

CONCLUSION OF LAW

The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for a liver disorder are not met. 38 U.S.C.A. §§ 1151, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.361 (2016).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Notify and Assist

VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103 (a) (West 2014); 38 C.F.R. § 3.159 (b) (2016).

VA’s duty to notify was satisfied for the claim before the Board by letter dated June 2010. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016).

The record also reflects that VA has made efforts to assist the Veteran in the development of his claim. VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran’s service treatment records (STRs), VA medical records, private medical records, VA examination reports, and the statements of the Veteran.

II. Section 1151 Claim

Compensation under 38 U.S.C.A. §1151 is awarded for a qualifying additional disability caused by improper VA treatment. A disability is a qualifying additional disability if the disability was not the result of the Veteran’s willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary of the VA, either by a Department employee or in a Department facility and the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361.

In Viegas v. Shinseki, the Federal Circuit noted that section 1151 delineates three prerequisites for obtaining disability compensation. First, a putative claimant must incur a “qualifying additional disability” that was not the result of his own “willful misconduct.” 38 U.S.C. § 1151 (a). Second, that disability must have been “caused by hospital care, medical or surgical treatment, or examination furnished the Veteran” by VA or in a VA facility. Finally, the “proximate cause” of the Veteran’s 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.” See Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013); 38 U.S.C. § 1151(a)(1)(A), (a)(1)(B). Thus, section 1151 contains two causation elements-a Veteran’s disability must not only be caused by the hospital care or medical treatment he received from VA, but also must be proximately caused by the VA’s fault or an unforeseen event.

In determining whether a Veteran has an additional disability, VA compares the Veteran’s condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the Veteran’s condition after care or treatment is rendered. 38 C.F.R. § 3.361(b).

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

Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease of injury for which the care or treatment was furnished 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).

To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance on VA’s part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran’s additional disability, it must be shown that the hospital care or medical or surgical treatment caused the Veteran’s additional disability; and (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 or medical or surgical treatment without the Veteran’s informed consent. Determinations of whether there was informed consent involve consideration of 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. 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. 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).

The Board must weigh any competent lay evidence and to make a credibility determination. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Layno, supra. The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor. Davidson v. Shinseki, 581 F.3d at 1313, 1316 (Fed. Cir. 2009). Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)].

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran contends that the pain medications prescribed for his lumbosacral spine disability have resulted in lesions, cysts, and/or other abnormalities of the liver. He has specifically contended that his medication was “overprescribed”, resulting in liver damage. See August 2010 Correspondence.

From March 2005, Continuous VA treatment records indicate the Veteran has been prescribed, in pertinent part, Oxycodone, Morphine, Tramadol, Hydrocodone, Gabapentin, Amitnptyline, Methadone, and Gabapentin. Further, records indicate that the Veteran was made aware of associated risks, side effects, compliance, and issues of dependence and he verbalized understanding.

A September 2008 CT abdomen of the Veteran indicated an “abnormal” liver, with decreased density and a liver mass.

A September 2008 abdominal MRI scan of the Veteran noted nine hepatic abnormalities in both the right and left lobes of the liver. The examiner noted no evidence of renal or adrenal abnormalities.

A December 2008 abdominal MRI scan of the Veteran noted no changes from previous MRI and that no additional follow-up was required.

A February 2012 Goose Creek VA outpatient note indicated that the Veteran stopped all pain medications due to concern about liver injury.

A June 2012 Goose Creek VA outpatient note reflected that the Veteran stopped all pain medications due to concern about liver injury.

A February 2014 Goose Creek VA outpatient note documented the Veteran’s concern about medication toxicities related to his kidneys and liver.

A March 2014 Goose Creek VA outpatient note indicated normal liver test.

A June 2014 Goose Creek VA outpatient note indicated no liver change, “one liver test is borderline elevated as it has been on and off in past.”

A December 2014 Goose Creek VA outpatient note indicated normal liver chemistry.

In September 2016, as required by an August 2016 Board remand, a medical opinion was provided. Upon review of the Veteran’s claim folder, the examiner opined that it is less likely than not that the Veteran’s current liver condition is associated with military service, secondary to service connected conditions, or result of the treatment of his service connected conditions. Further, the examiner stated that currently the veteran’s liver function tests are normal. This means there is no ongoing liver damage/disease. The veteran has hepatic (liver cysts). There was no evidence of diagnosis of the cysts in his service treatment records. As per the two referenced medical references there is no relationship between the cysts and medications. Thus the liver cysts were not caused by his military service, secondary to his service connected conditions, secondary to the treatment of his service connected conditions, or due to carelessness, negligence, and lack of proper skill, error in judgement or similar instance of fault on the part of the VA personnel caring for him. Further, the examiner noted that the Veteran’s previous liver enzyme elevation could have been caused by a multitude of things. Included in the list of liver toxins are many commonly used medications, alcohol, and fatty infiltration of the liver from obesity. The Veteran’s liver enzymes were normal as of December 9, 2015.

Based on the evidence above, including the competent and persuasive opinion provided by the September 2016 VA examiner, the Board finds that the Veteran’s liver cysts and liver enzymes were not the result of negligence or carelessness on the part of VA in prescribing medications for service-connected disabilities. To the extent the Veteran contends otherwise, he does not possess the requisite medical expertise to assess negligence in relation to dosages of medication. Accordingly, the claim for compensation pursuant to 38 U.S.C.A. § 1151 must be denied.

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ORDER

Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a liver disorder is denied.

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A. S. CARACCIOLO
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs