Citation Nr: 1140378 Decision Date: 10/31/11 Archive Date: 11/07/11 DOCKET NO. 92-13 222A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Washington, DC THE ISSUES 1. Entitlement to compensation for the residuals of a closed head injury under the provisions of 38 U.S.C.A. § 1151. 2. Entitlement to compensation for the residuals of a laceration of the liver under the provisions of 38 U.S.C.A. § 1151. 3. Entitlement to compensation for the residuals of a fracture of the femur under the provisions of 38 U.S.C.A. § 1151. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from January 1978 to May 1978 and from February 1979 to April 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 1996 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, DC. The Veteran testified before the undersigned Acting Veterans Law Judge in a hearing at the VA Central Office in June 2006. A transcript of the hearing is of record. The issues on appeal have been remanded to the Agency of Original Jurisdiction (AOJ) on numerous occasions, most recently in April 2010. The file has now been returned to the Board for additional appellate review. In September 2011, following the RO's most recent readjudication of the claim, the Veteran sent directly to be Board a sheaf of VA and private medical records, without attaching a waiver of AOJ review. These documents are essentially duplicative of evidence previously considered by the RO, and, where not previously considered, are either not relevant to the issue under appellate review or redundant of arguments previously considered by the AOJ. The Board has accordingly determined that remand for RO review is not required. Furthermore, claims for an increased evaluation for a seizure disorder and for a temporary total evaluation for the seizure disorder were submitted directly to the Board in September 2011, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran suffered closed head injury, lacerated liver and fractured femur in a motor vehicle accident in June 1994. 2. The motor vehicle accident in June 1994 was not caused by or the result of VA medical treatment. CONCLUSIONS OF LAW 1. Benefits pursuant to the provisions of 38 U.S.C. § 1151 for residuals of a closed head injury are not warranted. 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. § 3.358 (2011). 2. Benefits pursuant to the provisions of 38 U.S.C. § 1151 for residuals of a lacerated liver are not warranted. 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. § 3.358 (2011). 3. Benefits pursuant to the provisions of 38 U.S.C. § 1151 for residuals of a fractured femur are not warranted. 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. § 3.358 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The rating decision on appeal was issued prior to enactment of the VCAA. However, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claims. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claims would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Board also finds VA has complied with its duty to assist the Veteran in the development of the claim. VA and non-VA outpatient records were obtained, and the Veteran was afforded a VA examination to determine whether he incurred additional disability as a result of VA treatment. The Board determined in April 2010 that the examination report was inadequate, and remanded the case for additional commentary by the examiner, which was provided in December 2010. The Board has reviewed the examiner's addendum and finds the RO substantially complied with the requirements articulated in the Board's remand. D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran's current symptomology is not relevant to the issue on appeal, which is causation, so remand for additional examination is not warranted. The Veteran has also been afforded a hearing before the Board. The Veteran has not identified any outstanding evidence that could be obtained to substantiate the claim, and the Board is also unaware of any such evidence. Finally, the Board acknowledges that in a claim for compensation under 38 U.S.C.A. § 1151 VA has a duty to request quality assurance records from the Veterans Health Administration (VHA) and, if VHA denies access, to appeal such denial to the VA Office of General Counsel (OGC). See VAOPGCPREC 1-2011 (April 19, 2011); Hood v. Shinseki, 23 Vet App (2009). However, in this case the Veteran's claim is based on his disagreement with outpatient medications prescribed by a VA physician in June 1994, which is not a situation in which quality assurance records would have been generated. Further, it is VA's policy to destroy quality assurance records after three years unless needed for research or legal purposes. See Norvell v. Peake, 22 Vet. App. 194, 200 (2008) (citing VHA Records Control Schedule 10-1, at XXXIII-2 (Aug. 1, 2009)); see also VHA Records Control Schedule 10-1 (Mar. 1, 2011). There is accordingly no reason to believe that any quality assurance records were generated or, if generated, would still remain available. Remands that would only result in imposing additional burdens on VA, with no benefit flowing to the claimant, are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In sum, the Board is satisfied that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and not prejudicial to the Veteran. Accordingly, the Board will address the merits of the claim. Legal Criteria Under the provisions of 38 U.S.C.A. § 1151, disability compensation shall be awarded for a qualifying additional disability of a veteran in the same manner as if such additional disability were service-connected. In Brown v. Gardner, 115 S. Ct. 552 (1994), the Supreme Court found the statutory language of 38 U.S.C.A. § 1151 at the time simply required a causal connection between VA hospitalization and additional disability, and that there was no need to identify "fault" on the part of VA. On March 16, 1995, 38 C.F.R. § 3.358(c) was amended to remove the "fault" requirement in conformity with the Gardner decision. Subsequently, effective October 1, 1997, 38 U.S.C.A. § 1151was amended by Congress; see section 422(a) of PL 104-204. The purpose of the amendment in effect was to overcome the Supreme Court's holding in Gardner that a showing of negligence was not required for recovery under 38 U.S.C.A. § 1151. However, in a precedent opinion, the VA Office of General Counsel held that claims for compensation under 38 U.S.C.A. § 1151 filed before October 1, 1997 must be adjudicated under regulations in existence prior to that date; see VAOPGCPREC 40-97. As the instant claim was filed in August 1994, 38 C.F.R. § 3.358 applies. Pursuant to 38 C.F.R. § 3.358 for claims received prior to October 1, 1997, where it is determined that there is an additional disability resulting from a disease or injury of aggravation of an existing disease or injury suffered as a result of VA hospitalization or medical treatment, compensation will be payable for such additional disability. However, it is necessary to show that the additional disability is actually the result of such disease or injury or aggravation of disease or injury and not just coincidental therewith. See 38 C.F.R. § 3.358(c)(1). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2008); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis As noted above, the instant claim was filed prior to October 1, 1997. Accordingly, neither evidence of an unforeseen event nor evidence of VA negligence is required to support the claim. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). However, an additional disability must be shown to have been caused by VA hospitalization or medical treatment. Specifically, the evidence must show that something VA did or failed to do resulted in additional disability. This appeal differs from the usual claim under 38 U.S.C.A. § 1151, which envisions a claimant seeking compensation for an existing disorder that has gotten worse, rather than better, as a result of VA medical treatment (hence, "additional disability"). In the present case, the Veteran asserts he suffered new injuries in an accident that was due to VA medical treatment. As articulated in his hearing before the Board and in his correspondence to VA, the Veteran essentially contends that he suffered a closed head injury, fractured femur and lacerated liver in a motor vehicle accident (MVA) in June 1994. He asserts that he had the MVA because he had a seizure while driving, and that if a VA physician had not previously reduced the dosage of his anti-seizure medication (Dilantin), and/or had not warned him not to drive, he either would not have driven or else would not have had a seizure behind the wheel. Either way, but for the reduced medication (which the Veteran has also characterized as a "misdiagnosis") he would not have had the accident in which he suffered the claimed injuries. To be clear: in raising a "but-for" theory of causation the Veteran is contending that the reduction in his anti-seizure medication was the proximate cause of the MVA. "Proximate cause" is that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the injury would not have occurred. Robinette v. Brown, 8 Vet. App. 69, 78 (1995). An "intervening cause" is one that comes between the initial force or cause and the injury. Black's Law Dictionary, 1225 (6th ed. 1990). The Veteran's theory resembles that of a tort claim for negligence, with the exception that 38 C.F.R. § 3.385 does not require a showing of negligence on the part of VA. However, causation must still be shown. Review of the evidence of record shows the Veteran had been taking Dilantin for seizures and blackouts since 1983 (see VA neurology clinic note dated in October 1990). Despite the Dilantin, he had a history of seizures and/or blackouts behind the steering wheel prior to June 1994 (see VA Medical Center note in April 1991: "Since [the Veteran] started on Dilantin ... [H]e has continued to drive and has had car accidents due to blacking out while at the wheel"). The Veteran was thus aware of the risk attendant to driving with his seizure disorder even while being treated with Dilantin. Further, a VA neurology note in December 2004 shows the Veteran continued to drive even after the accident, despite having been previously advised on multiple occasions not to do so because he was risking his own life and the lives of others thereby. Private neurology notes from Dr. WEL show that in June 1993 the Veteran was taking 650 mgs of Dilantin per day (250 mg in the morning, 200 mg in the afternoon and 200 mg in the evening) and also taking 600 mg. of Tegretol per day (200 mgs three times per day). In February 1994 the dosage Dilantin was continued although the Tegretol was reduced to 400 mg. (200 mg twice per day). This regimen was continued in September 1993. In August 1993 the Veteran stated the Tegretol made him dizzy and drowsy and that he did not take it. The previous dosage (total 400 mg of Tegretol and 650 mg. of Dilantin per day) was continued in March 1994. In April 1994 the Veteran presented to the VA neurology clinic with symptoms of Dilantin toxicity on his current regimen; the neurologist also noted an impression of comorbid paranoid schizophrenia. On June 14, 1994 he presented to the VA neurology clinic with continued symptoms of Dilantin toxicity despite reduction of Dilantin from 6 doses per day to 4 doses, and his medication was adjusted to decrease Dilantin to 300 mg. On June 17, 1994, three days after the reduction in his dosage of Dilantin, the Veteran was involved in a high-speed MVA. Per the police report the Veteran struck the median, lost control of the vehicle and then collided with a light pole; he was cited by the police for driving while distracted. Treatment notes from Washington Hospital Center, to which he was taken after the MVA, note medical history of seizure disorder for the past 10 years and questionable history of schizophrenia. There is no indication in the treatment records as to the cause of the MVA. The Veteran was alert and awake on arrival at Washington Hospital Center, but he was uncooperative and combative and continued to show signs of agitation and hyperactivity throughout his inpatient treatment. The discharge medical diagnosis was MVA, grade II liver laceration, closed femur fracture and closed head injury. Of note, on discharge he continued to receive 200 mg. of Dilantin and 300 mg. of Tegretol, the same dosage that he been prescribed by the VA neurologist. The treatment notes cited above clearly show the Veteran's attending VA physician reduced the dosage of Dilantin in June 1994 because the Veteran was exhibiting signs of Dilantin poisoning. While the reduction in Dilantin arguably may have made the Veteran more prone to having seizures (although the dosage of Tegretol was increased to compensate), there is no indication that the prescribed medication actually caused seizures. Also, there is no indication of record, and the Veteran has not asserted, that the VA physician or any other physician advised the Veteran at any time - either before or after the Dilantin dosage was reduced - that his medications made it safe for him to drive. The Veteran had a VA neurological examination in May 2004, performed by a physician who reviewed the claims file and noted the Veteran's contention that his MVA in June 1994 was due to the reduced dosage of Dilantin. The Veteran stated he had been able to drive since 1983, provided he used his medication. The examiner performed a clinical examination of the Veteran and diagnosed complex partial seizures since childhood. In regard to the MVA, it was unclear if the Veteran had a seizure that caused the accident, although the VA physician had reduced the dosage of Dilantin for good medical reasons (Dilantin toxicity and skin rash). The examiner stated it was unclear why the Veteran was allowed to drive; the examiner recommended continued medication and no driving. The VA examiner cited above issued an addendum in May 2005 stating the MVA in June 1994 could possibly have been the result of a seizure, but this could not be determined with any certainty. The examiner noted that although Dr. WEL had characterized the Veteran as being "seizure-free" on the previous regimen in March 1994 (before it was reduced by the VA physician), earlier notes by the same provider had shown occasional "black-out" while on the same dosage. The Veteran's file was returned in December 2010 to the VA examiner who had performed the examination cited above in order to obtain a more complete medical opinion. The examiner once again reviewed the claims file, including evidence received since his previous examination report. The examiner stated it is unclear what caused the MVA in June 1994 without resorting to pure speculation. However, the dose of Dilantin had been reduced for good reason (Dilantin toxicity) and the dosage of Tegretol, which the examiner notes is also a seizure medication) had been increased at the same time. Further, there is evidence of record the Veteran has a history of medical intractable epilepsy with relatively frequent breakthroughs despite medication, as well as a question of the Veteran's noncompliance with medications in the past. It is therefore unclear, even if the MVA was due to seizure, whether such seizure was related to reduced Dilantin dosage or just a breakthrough spell. The Board may rely on a statement that an opinion cannot be provided without resort to "mere speculation" if it is clear that the procurable and assembled data was fully considered and the basis for the opinion is provided by the examiner or apparent upon a review of the record. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The VA examination reports clearly show that on each occasion the examiner thoroughly considered the procurable medical and lay evidence of record, and the Board accordingly finds the criteria of Jones are satisfied. On review of the evidence above, the Board finds the MVA in June 1994, in which the Veteran suffered the claimed injuries, was not caused by the reduction in his medication by the VA neurologist. In this regard, the VA examiner stated it would be speculative to attribute the MVA to a seizure, and even if the MVA was shown to be due to seizure it would be further speculation to attribute such a seizure to the reduction in medications, particularly since he had a documented history of seizures under the previous regimen before the reduction. The findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). Further, this medical opinion is not controverted by any other medical opinion of record. The Veteran has asserted in his correspondence that several unidentified physicians had told him the VA physician erred in reducing the dosage of Dilantin, and had agreed that such reduction was the cause of the MVA. However, such an opinion is not documented anywhere in the record. In that regard, hearsay medical evidence does not constitute competent medical evidence. Robinette v. Brown, 8 Vet. App. 69 (1995); Warren v. Brown, 6 Vet. App. 4 (1993). ("What a physician said, and the layman's account of what he purportedly said, filtered through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute medical evidence." Robinette, 8 Vet. App. at 77 (1995)). VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has considered the lay evidence offered by the Veteran in the form of his testimony, his correspondence to VA and his statements to various medical providers. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, a layperson is not considered capable of opining, however sincerely, in regard to causation of a disability. Routen v. Brown, 10 Vet. App. 183, 187 (1997), aff'd sub nom Routen v. West, 142 F3d 1434 (Fed. Cir. 1998), cert denied, 119 S. Ct. 404 (1998). Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this case, the Veteran is not competent to attribute his reported behind-the-wheel seizure to his reduced Dilantin, given that the examining neurologist could not do so. The Veteran is competent to report whether he had a seizure behind the wheel. However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board may not ignore a veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits; personal interest may, however, affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). In this case, the Board finds the Veteran's account of a behind-the-wheel seizure is not credible because his lay account of his MVA is not consistent with the objective medical evidence of record. Although the Veteran testified he had been air evacuated to Washington Hospital Center and only awoke after three days, the treatment records from that facility clearly show the Veteran merely had "questionable" loss of consciousness during the accident and arrived at the hospital alert and awake. Further, the Veteran was identified prior to the accident as having paranoid schizophrenia; psychiatric treatment notes subsequent to the accident state the accident had fueled the Veteran's paranoia, which further undermines his credibility in reporting the circumstances of the accident. Finally, the Veteran is shown to have a history of substance abuse and of financial problems, both of which factors make him susceptible to monetary gain and further undermine his credibility. In sum, based on the evidence and analysis above, the Board has found the MVA in June 1994 was not caused by or the result of VA medical treatment. Accordingly, residuals of injuries incurred during that MVA are not subject to compensation under 38 U.S.C.A. § 1151, and the claim must be denied. The Board has considered the benefit-of-the-doubt rule. However, the "but-for" chain of causation as posed by the Veteran is simply too tenuous to place the evidence in equipoise. The finding by the December 2010 examiner that it is unclear what caused the June 1994 MVA without resorting to speculation does not mean it was "as likely as not" that it was caused by a seizure, much less that it was caused by a seizure that was the result of a reduction in the Veteran's medication by his VA physician. There is not an approximate balance of positive and negative evidence. Accordingly, the benefit-of-the-doubt rule is not applicable. Gilbert, 1 Vet. App. 49, 54. (CONTINUED ON NEXT PAGE) ORDER Entitlement to benefits pursuant to the provisions of 38 U.S.C. § 1151 for residuals of a closed head injury is denied. Entitlement to benefits pursuant to the provisions of 38 U.S.C. § 1151 for residuals of a lacerated liver is denied. Entitlement to benefits pursuant to the provisions of 38 U.S.C. § 1151 for residuals of a fractured femur is denied. ____________________________________________ John L. Prichard Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs