Citation Nr: 1112142	
Decision Date: 03/25/11    Archive Date: 04/06/11

DOCKET NO.  09-08 169	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Milwaukee, Wisconsin



THE ISSUE

Entitlement to disability compensation under 38 U.S.C.A. § 1151 for ulcerative colitis or residuals thereof, including those due to treatment for gout.



REPRESENTATION

Appellant represented by:	Wisconsin Department of Veterans Affairs



ATTORNEY FOR THE BOARD

Suzie S. Gaston, Counsel



INTRODUCTION

The Veteran served on active duty from March 1943 to August 1945.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision, by the Milwaukee, Wisconsin RO, which denied a claim of entitlement to compensation under 38 U.S.C.A. § 1151 for ulcerative colitis due to medications prescribed by VA.  An April 2008 rating decision confirmed the denial of the Veteran's claim.  

In August 2010, the Board remanded the case to the RO for further evidentiary development.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. § 7107(a) (2) (West 2002).  


FINDING OF FACT

The Veteran does not have ulcerative colitis or residuals thereof, including those due to treatment for gout, that are due.  


CONCLUSION OF LAW

The criteria for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for ulcerative colitis or residuals thereof, including those due to treatment for gout, have not been met.  38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159(a), 3.361 (2010).  



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.326(a) (2010).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC).  Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).  

In this case, VA satisfied its duty to notify by means of a letter dated in November 2007 from the RO to the Veteran, which was issued prior to the RO decision in January 2008.  An additional letter was issued in August 2010.  Those letters informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence.  

The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify.  

Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence.  It also appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal.  It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice.  

The Board is unaware of any outstanding evidence or information that has not already been requested.  The RO has obtained a medical opinion on the issue decided herein.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Nieves- Rodriguez v. Peake, 22 Vet. App 295 (2008).  The opinion was provided by a medical professional who reviewed the medical records and who gave an opinion necessary to decide the claim.  

Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA.  Therefore, no useful purpose would be served in remanding this matter for yet more development.  Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran.  The Court has held that such remands are to be avoided.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  

II.  Background

The Veteran contends that his ulcerative colitis was made worse by the medications prescribed by VA for treatment of gout.  The Veteran asserts, in essence, that VA knew or should have known that prescribing Indocin and colchicine would cause him problems with his ulcerative colitis; as such, he maintains that prescribing those medications for treatment of gout amounted to carelessness, negligence or, at the very least, an error in judgment.  

The Veteran's claim for compensation benefits under the provisions of 38 U.S.C.A. § 1151 was received in September 2007.  The Veteran indicated that he went to VA for his gout condition and was given a prescription that almost cost him his life.  The Veteran stated that the medicine that he was prescribed caused him to bleed internally; as a result, he had to spend 6 weeks in the hospital and is now required to take medications for the rest of his life.  

Submitted in support of the claim was a statement from Dr. Jerry C. Evans, dated in May 2007, indicating that the Veteran had a two-year history of colitis.  Dr. Evans reported that, in the past, he had removed large polyps from the Veteran's colon that showed high grade dysplasia; however, because of the Veteran's age and physical disabilities, the Veteran opted not to undergo surgical resection of his colon.  Dr. Evans noted that, in November/December 2006, the Veteran developed bilateral foot pain and was evaluated at the VA Medical Clinic; he was prescribed both Indocin and colchicine.  Dr. Evans also noted that, shortly after starting those medications, the Veteran had nausea, vomiting and diarrhea. It was noted that the Veteran's private physician at the Fond du Lac Regional Clinic appropriately stopped the Indocin, but the Veteran's symptoms persisted.  The Veteran was then admitted to the hospital and underwent a colonoscopy where he was found to have severe ulcerative colitis exacerbated by the non-steroidal medications.  Dr. Evans stated that he had a lot of concern with the idea of placing an elderly person over the age of 65 on Indocin.  He explained that many studies have shown that patients of this age group have problems with ulceration and renal failure, especially those that have underlying colitis.  Dr. Evans stated that he felt that those non-steroidal medications should not be used as they are well known to exacerbate colitis.  Dr. Evans further stated that he felt that the Veteran's long hospitalization and rehabilitation were the direct result of the prescription of Indocin.  He noted that the Veteran required approximately one month in the hospital as well as almost a month in transitional care before he was able to be discharged.  Dr. Evans stated that this would not have happened had the Veteran not been prescribed Indocin.  

Received in October 2007 were VA progress notes dated from February 2006 through November 2006.  The Veteran was seen in March 2006 to establish care.  His past medical history included severe colitis, suggestive of inflammatory bowel disease.  Following an evaluation, the assessment was severe colitis, suggestive of inflammatory bowel disease; colonoscopy and EGD were recommended, but the Veteran declined.  The Veteran was seen at a VA primary care clinic in November 2006 for complaints of redness, swelling, and pain in both feet with walking.  The right big toe and the second digit were red, swollen and warm to the touch; he also had onychomycosis in all nails on both feet. He had decreased sensation in the toes.  The assessment was gout; he was prescribed colchicine and indomethacin.  

The Veteran's claims folder was referred to a VA examiner in December 2007 for review and opinion.  The examiner noted that the Veteran had been seen at a Milwaukee VA CBOC in November 2006 for follow-up evaluation of his medical problems.  He was diagnosed with gout and started on Indocin and colchicine.  The VA examiner referred to the letter from Dr. Evans.  The examiner indicated that the Veteran reported that he developed nausea and vomiting after he started taking Indocin and cholchicine.  It was noted that the Veteran was taken to the emergency room 2 to 3 days later; he was admitted and hospitalized for over 6 weeks because of generalized weakness.  He was told that he was bleeding internally.  Since his discharge from the hospital, the Veteran has done well.  Currently, his ulcerative colitis is controlled with medications.  The examiner stated that he had not received records of the hospitalization at St. Agnes; thus, he was unable to comment on the association of this hospitalization in relation to his treatment at the Appleton CBOC.  The examiner noted that, based on Dr. Evan's statement, there was a temporal association.  It was noted that Indocin can aggravate ulcerative colitis although it is not contraindicated in this disease.  Based on the letter from Dr. Evans, the examiner opined that colitis was aggravated by the Indocin.  The examiner stated that, if this was the case, it was his opinion that there was an error in judgment in prescribing the Indocin resulting in hospitalization for a flare of his ulcerative colitis.  He further stated that this was a temporary flare with no findings of any permanent residuals.  

Received in March 2008 were treatment reports from Dr. Jerry C. Evans dated from February 2007 through January 2008.  These records show that the Veteran received clinical evaluation and treatment for ulcerative colitis.  When seen in February 2007, it was noted that the Veteran was being seen for follow-up evaluation of his severe ulcerative colitis; it was noted that he recently had a prolonged hospitalization after a severe flare of colitis.  The examiner stated that the Veteran developed that flare after being prescribed nonsteroidal medications.  Dr. Evans noted that, had he been younger and in better shape, the Veteran would have undergone a colectomy for this.  They were able to slowly resolve the severe case of colitis and the Veteran eventually went back to baseline.  The impression was that the ulcerative colitis flare had resolved. It was noted that the Veteran was doing well.  

In a letter dated in February 2008, Dr. Evans stated that the Veteran had been a long-time patient of his for treatment of ulcerative colitis.  He noted that the Veteran had had colitis for some time and this was well documented in his medical record.  Dr. Evans also noted that the Veteran was placed on colchicine as well as large doses of NSAIDs in 2006; this was prescribed by the VA clinic for bilateral foot pain.  Dr. Evans indicated that the Indocin caused a severe exacerbation of the Veteran's colitis and he nearly succumbed to the illness.  Dr. Evans explained that the Veteran needed long-term total parenteral nutrition (TPN), long-term hospitalization and rehabilitation.  He stated that protracted Indocin usage in an elderly male with a history of colitis was not medically indicated, and he felt that the Indocin directly caused the Veteran's colitis exacerbation.  Dr. Evans observed that the Veteran had not really had any flares of his colitis since 2006.  

In March 2008, the Veteran's claims folder along with additional private medical records were referred to the VA examiner who provided the December 2007 opinion for review and an opinion on the issue.  The examiner stated that the Veteran did not have any permanent increase in his ulcerative colitis which can be attributed to the medications that were prescribed by VA.  The examiner noted that the medications prescribed by the VA did as likely as not cause or contributed to his flare of his ulcerative colitis, but this flare resolved.  He had no permanent aggravation of his ulcerative colitis and no permanent residuals due to the Indocin prescribed.  The examiner stated that a short course of Indocin would not be contraindicated with ulcerative colitis; however, since alternative therapy for gout is available, there was some fault on the part of the VA in prescribing the Indocin.  Thus, there was a temporary flare of his ulcerative colitis requiring hospitalization.  

Received in October 2009 were treatment reports from Saint Agnes Hospital dated from December 2006 to January 2007.  These records show that the Veteran was seen at St. Agnes on December 11, 2006 with complaints of nausea, vomiting and diarrhea. It was noted that the Veteran had a history of ulcerative colitis and tubular villous adenoma with high grade dysplasia; these were both diagnosed in November 2005.  The Veteran indicated that 2-3 weeks earlier, he was having no difficulties with his bowel pattern.  He developed bilateral foot pain and was evaluated at the VA clinic; he was diagnosed with gout and was prescribed both Indocin and colchicine.  The Veteran indicated that, shortly after starting those medications, he developed nausea, vomiting and diarrhea.  He was evaluated by a private physician who recommended that the colchicine and the Indocin be discontinued, but his symptoms persisted.  He presented to the emergency room at St. Agnes and was eventually admitted.  During his hospitalization, he was started on Protonix.  

Treatment notes from Dr. Evans dated from February 2007 to July 2009 show that the Veteran's colitis was considered in remission.  In September 2007, Dr. Evans noted that the Veteran was doing exceedingly well.  The most recent report, dated in July 2009, indicates that the Veteran was "doing well."  However, an April 2009 report indicates that the severe flare of colitis had left the Veteran extremely weak and with balance issues.  A January 2009 entry also refers to balance issues after the severe flare of colitis.  These later entries also refer to a change in medication required to control the colitis.  

The Veteran was afforded a VA examination in August 2010.  At that time, the examiner noted that the Veteran reported that he had had a long-standing history of ulcerative colitis.  He was not having any current issue with his ulcerative colitis; his complaints were more with balance problems and breathing difficulties.  The Veteran related that he had had issues with his balance since a prolonged hospitalization for ulcerative colitis.  It was noted that the Veteran's last major attack of ulcerative colitis was in 2006; he was unable to specify how many times a year he has an attack of ulcerative colitis.  The Veteran indicated that digestive issues specifically do not cause problems with his daily functioning; he does note that breathing and balance issues cause difficulty with ambulation and moving around.  On examination, the Veteran was described as well-developed and well-nourished and in no acute distress.  He rose from his chair with assistance and ambulated with a cane.  Physical examination revealed no signs of malnutrition or anemia or other disability.  The diagnosis was ulcerative colitis, currently on Lialda; his symptoms are controlled with this medication, giving him a "clinical remission;" however, he has laboratory evidence of active disease based on his anemia and elevations of the ESR and CRP.  

The examiner noted that his opinion was based on his review of the claims file, review of the medical records, the known medical literature, and his examination of the Veteran, as well as consensus guidelines from the American Gastroenterological Association, and the American College of Gastroenterology guidelines in the management of ulcerative colitis.  The examiner explained that the Veteran's ulcerative colitis has been in clinical remission since the flare in 2006; the clinical remission has been induced by Lialda.  The examiner stated that ulcerative colitis does not typically cause weakness or balance problems.  The Veteran temporally related his weakness and balance problems to his hospitalization for ulcerative colitis; however, the examiner noted that the Veteran is an 87-year old man with knee problems.  The examiner concluded that finding weakness and balance problems were secondary to ulcerative colitis and its flare would require the examiner to resort to mere speculation.  

III.  Analysis

The law provides that compensation may be paid for a qualifying additional disability or qualifying death, not the result of the Veteran's willful misconduct, caused by hospital care, medical or surgical treatment, or examination furnished the Veteran when the proximate cause of the disability or death was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not recently foreseeable.  38 U.S.C.A. § 1151.  

The regulations provide that benefits under 38 U.S.C.A. § 1151(a) for claims received by VA on or after October 1, 1997, as in this case, for additional disability or death due to hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program, require actual causation not the result of continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished, unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress.  The additional disability or death must not have been due to the Veteran's failure to follow medical instructions.  38 C.F.R. § 3.361 (2010).  

It must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran'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 that (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent.  To establish the proximate cause of an additional disability or death, it must be shown that there was 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.  Whether the proximate cause of a Veteran's additional disability or death 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) (2010).  

In determining whether additional disability exists, the veteran's physical condition immediately prior to the beginning of the hospital care, medical or surgical treatment, or other incident in which the claimed disease or injury was sustained (i.e., medical examination, training and rehabilitation services, or work therapy), is compared to the veteran's condition after such treatment, examination or program has stopped.  See 38 C.F.R. § 3.361(b).  

Provided that additional disability is shown to exist, the next consideration is whether the causation requirements for a valid claim have been met.  In order to establish actual causation, the evidence must show that the medical or surgical treatment resulted in the Veteran's additional disability.  See 38 C.F.R. § 3.361(c) (1).  Furthermore, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause.

In order for additional disability to be compensable under 38 U.S.C.A. § 1151, the additional disability must have been actually caused by, and not merely coincidental to hospital care, medical or surgical treatment, or medical examination furnished by a VA.  Loving v. Nicholson, 19 Vet. App. 96, 100 (2005).  In order for additional disability to be compensable under 38 U.S.C.A. § 1151, the additional disability must have been the result of injury that was part of the natural sequence of cause and effect flowing directly from the actual provision of "hospital care, medical or surgical treatment, or examination" furnished by VA and that such additional disability was directly caused by that VA activity.  Id at 101.  

Upon consideration of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim for benefits under the provisions of 38 U.S.C.A. § 1151 for ulcerative colitis or residuals thereof, including those due to treatment for gout.

Upon review of the evidence of record, the Board concludes that the evidence does not support the Veteran's assertion that he now has additional disability, including symptoms of weakness and balance problems, as a result of a medication-induced flare of his colitis.  Review of the record reflects that although the Veteran experienced a flare up of colitis in 2006 as a result of Indocin which had been prescribed for treatment of gout, his ulcerative colitis flare resolved.  The Veteran's symptoms are currently controlled with medication, which provides clinical remission.  A threshold requirement for the payment of VA compensation is that additional disability must be shown.  38 U.S.C.A. § 1151.  

In this regard, following an evaluation of the Veteran and review of the claims folder, in August 2010, a VA examiner noted that while the Veteran related chronic weakness and balance problems to his hospitalization for the flare of ulcerative colitis, ulcerative colitis does not typically cause those symptoms.  The examiner also noted that the Veteran was an 87-year old man with knee problems.  Given these facts, and the fact that the Veteran's ulcerative colitis was in clinical remission, the examiner stated that speculation would be required to link weakness and balance problems to the ulcerative colitis.  In other words, the evidence and medical precepts do not provide a basis for finding a link, only conjecture would.  This opinion is supported by and consistent with a previous medical opinion provided by a VA doctor in December 2007 who opined that, while it was an error in judgment to prescribe Indocin for the Veteran, the flare up in 2006 was a temporary flare with no permanent residuals.  In March 2008, the same VA doctor reviewed the claims folder and determined that the Veteran had no permanent aggravation of his ulcerative colitis and no permanent residuals from taking the Indocin, which included weakness and balance problems.  

The only evidence of record supportive of the Veteran's claim that he currently suffers from weakness and balance problems as a result of treatment for the flare up of colitis in 2006 consists of the lay statements of the Veteran himself.  However, while the Board respects the right of the Veteran to offer his opinion, he has not been shown to have the requisite medical training or knowledge to provide a competent opinion as to this matter.  See Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  Lay statements may serve to support claims by supporting the occurrence of lay- observable events or the presence of disability or symptoms of disability subject to lay observation.  38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  However, the issue in this case is a medical matter that requires specialized training for a determination as to diagnosis and causation, etc., and it is therefore not susceptible of resolution by lay opinions.  Consequently, the Board finds that any assertions by the Veteran as to medical issues have no probative value.  

The Board has considered the benefit-of-the-doubt doctrine, but finds that the record does not provide even an approximate balance of negative and positive evidence on the merits.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Therefore, on the basis of the above analysis, and after consideration of all the evidence, the Board finds that the preponderance of the evidence is against this § 1151 claim.  The Veteran does not have additional disability due to the colitis flare in 2006, including weakness or balance problems.  See 38 U.S.C.A. § 1151; 38 C.F.R. § 3.102.  


ORDER

Compensation under 38 U.S.C.A. § 1151 for ulcerative colitis or residuals thereof, including those due to treatment for gout, is denied.  



_______________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs