Citation Nr: 1441457 Decision Date: 09/17/14 Archive Date: 09/22/14 DOCKET NO. 12-10 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to payment of compensation benefits under 38 U.S.C.A. § 1151 for diabetes mellitus, type II. 2. Entitlement to payment of compensation benefits under 38 U.S.C.A. § 1151 for an acquired psychiatric disorder, to include as secondary to diabetes mellitus, type II. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. H. Donnelly, Counsel INTRODUCTION The Veteran had qualifying active duty service from March 1959 to August 1959; all other periods of service have been found to have been under other than honorable conditions. See June 1982 VA Administrative Decision. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2010 and July 2010 rating decisions by the St. Louis, Missouri, Regional Office (RO) of the United States Department of Veterans Affairs (VA). The February 2010 decision, which was reconsidered in April 2010, denied entitlement to compensation for diabetes under 38 U.S.C.A. § 1151. Entitlement to benefits for a psychiatric disorder, as secondary to diabetes, was denied in July 2010. The Veteran additionally initiated an appeal of a denial of compensation benefits for erectile dysfunction as secondary to diabetes, but elected to not perfect that appeal in April 2012; the issue is not before the Board. The Veteran testified at a June 2014 held before the undersigned via videoconference from the RO; a transcript of the hearing is associated with the claims file. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. FINDINGS OF FACT 1. Diabetes mellitus, type II, is an additional disability caused by use of prednisone prescribed by VA doctors for treatment of myasthenia gravis in late 2002. 2. Use of a steroid for treatment of myasthenia gravis met the applicable standard of care. 3. The development of diabetes mellitus, type II, is a known and foreseen risk of the use of prednisone. 4. The Veteran consented to the use of corticosteroids for treatment, both by inference and by acceptance of a cure for myasthenia gravis. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation benefits under 38 C.F.R. § 1151 for diabetes mellitus, type II, are not met. 38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.361, 17.32 (2013). 2. The criteria for entitlement to compensation benefits under 38 C.F.R. § 1151 for an acquired psychiatric disorder secondary to diabetes mellitus, type II, are not met. 38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.310, 3.361, 17.32 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. A September 2009 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's relevant VA medical treatment records and private treatment records have been obtained; service treatment records are associated with the claims file, but are not relevant to the current claims.. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2). VA medical opinions were secured in September 2010 and April 2012. The examiners offered all necessary opinions, with supporting rationale based on physical examination or review of the records. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). At the Veteran's June 2014 hearing, the undersigned discussed in detail the elements of each of the claims on appeal, to include identifying the specific types of evidence and information which would be of assistance in substantiating them. Additionally, the Veteran was offered an opportunity to ask the undersigned questions regarding his claim. 38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis The Veteran alleges that due to improper VA treatment in late 2002, he has developed additional disabilities, to include diabetes and related mental health problems. Specifically, he reports that the prescription and use of prednisone, a corticosteroid, beginning in September 2002 for treatment of myasthenia gravis resulted in diabetes. This condition then caused stress and anxiety, leading to an acquired psychiatric disorder. Payment of compensation for such disabilities as if they were service-connected is possible under current law. Benefits under 38 U.S.C.A. § 1151 are paid for disabilities when such are incurred in the course of VA treatment, and result from "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of" VA or where the additional disability resulted from an event or circumstance which was not reasonably foreseeable. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. Here, there is no dispute over the presence of an additional disability, or its relationship to VA treatment. Both examining VA doctors and the Veteran's treating physician all agree that the use of the corticosteroid in treatment for myasthenia gravis was a direct cause of the development of diabetes. The doctors all agree as well that the possibility of diabetes with use of prednisone is a well-known and accepted risk, and hence was reasonably foreseeable. See September 2010, April 2012 VA examination reports, March 2010 progress note. The question, then, is whether some "instance of fault" on the part of VA caused or contributed to the additional disability. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment proximately caused a Veteran's additional disability, it must be shown 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 a Veteran's or, in appropriate cases, his or her representative's informed consent. 38 C.F.R. § 3.361(d). As to the first possibility, regarding the standard of care, the Veteran's treating doctor and the two VA examiners have stated that use of prednisone, a corticosteroid, was entirely consistent with the recognized and appropriate course of care for a patient suffering from myasthenia gravis. The treatment was, in fact, successful. The Veteran does not dispute this, and the Board finds in the absence of any contrary evidence that VA complied with the appropriate standard of care. The crux of the Veteran's claim revolves around the existence of informed consent. The Veteran maintains that he was not informed that taking prednisone would, or could, cause diabetes. "I was not given a warning or other choices." See VA Form 9, Appeal to Board of Veterans' Appeals (April 2012). Informed consent is "the freely given consent that follows a careful explanation...of the proposed...course of treatment." The explanation must include the nature of the treatment; expected benefits; reasonably foreseeable complication, risks, and side effects; alternatives; and expectations if no action were taken. 38 C.F.R. § 17.32(c). Signature consent is not required for the prescription of oral prednisone, as here. 38 C.F.R. § 17.32(d). Minor deviations from these requirements are acceptable so long as the fact of informed consent is not defeated; only substantial compliance is necessary. 38 C.F.R. § 3.361(d)(1)(ii). The Board finds that the Veteran was given appropriate warnings, and his informed consent is adequately documented and inferred by the evidence of record. In September 2002, the Veteran was hospitalized for a variety of complaints including failing eyesight; an aneurysm was suspected. In consultation with an ophthalmologist, myasthenia gravis was diagnosed and prednisone was prescribed by Dr. SRB, the VA primary care doctor. Discharge notes indicate that the Veteran was provided detailed information regarding his escalating dosages in September 2002, and the converse reductions in December 2002 when his elevated blood sugars became problematic. While it is unclear what notice was given and consent received at the initial use of prednisone in the hospital, the presumption of regularity serves to establish substantial compliance with the informed consent requirements with the prescription and use of the corticosteroid following discharge. There is a presumption that public officers perform their official duties correctly, fairly, in good faith, and in accordance with law and governing regulations. Marsh v. Nicholson, 19 Vet.App. 381, 385 (2005); see also Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed.Cir.2009). In connection with the provision of a prescription, law and regulation obligates the provider of the medication to provide a summary of the drug's effects, risks, contraindications; such is provided routinely in all cases, and is not given specific to individual patients. See McNair v. Shinseki, 25 Vet. App. 98 (2011). It may therefore be presumed that on discharge with his prescription and detailed instructions on how to administer it, the Veteran was afforded full and fair warning of the possibility of diabetes. The Board would note that the Veteran was also afforded monitoring of his blood sugars as a result of the use of prednisone, supporting the finding that he was provided adequate notice and gave consent. Finally, the Board notes that the medical professionals agree that once myasthenia gravis was diagnosed, the only real treatment choice was corticosteroids. The alternative was to lose his vision entirely. "[T]he failure to advise a patient of a foreseeable risk can be considered a minor, immaterial deviation under the regulation if a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk." McNair v. Shinseki, 25 Vet. App. 98 at 107. The Veteran stated that he was glad his vision was saved, but that diabetes was "bothersome." The Veteran has clearly indicated that regardless of actual notice, he would have undertaken the cure, to prevent blindness, negating any failure of actual consent in this case. Therefore, no instance of fault on the part of VA is shown is the prescription and use of prednisone, or the resultant development of diabetes. Payment of compensation benefits under 38 U.S.C.A. § 1151 for diabetes mellitus is not warranted. It follows, then, that even assuming the Veteran's claimed psychiatric complaints are etiologically related to diabetes, secondary service connection for a mental disorder, the sole theory of entitlement espoused by the Veteran, cannot be maintained. (CONTINUED ON NEXT PAGE) ORDER Entitlement to payment of compensation benefits under 38 U.S.C.A. § 1151 for diabetes mellitus, type II, is denied. Entitlement to payment of compensation benefits under 38 U.S.C.A. § 1151 for an acquired psychiatric disorder, to include as secondary to diabetes mellitus, type II, is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs