Citation Nr: 1142020 Decision Date: 11/10/11 Archive Date: 11/21/11 DOCKET NO. 09-29 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for chronic disability manifested by loss of balance, pain and seizures, due to VA treatment in August and September 1995. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from April 1975 to April 1980. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, which denied the benefit sought on appeal. When this case was previously before the Board of Veterans' Appeals (BVA or Board) in February 2011, it was remanded for additional development. The case is now before the Board for final appellate consideration. FINDING OF FACT The competent medical, and competent and credible lay, evidence of record demonstrates that VA treatment in August and September 1995 resulted in additional chronic disability manifested by loss of balance, and that the proximate cause of the additional disability was an event that was not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under the provision of 38 U.S.C.A. § 1151 for chronic disability manifested by loss of balance due to VA treatment in August and September 1995 have been met. 38 U.S.C.A. § 1151, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 3.361 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). Under the applicable VA laws and regulations, when a veteran suffers additional disability or death as a result of training, hospital care, medical or surgical treatment, or an examination furnished by VA, disability compensation shall be awarded in the same manner if such disability or death was service connected. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. The law requires not only that the VA treatment in question resulted in additional disability but also that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the surgical treatment, or that the proximate cause of the additional disability was an event that was not reasonably foreseeable. 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 such care or treatment. 38 C.F.R. § 3.361(b) (2011). 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 cause. 38 C.F.R. § 3.361(c)(1) (2011). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or 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) (2011). 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 veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability or death; 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) (2011). Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is 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) (2011). The Veteran contends that he is entitled to compensation under 38 U.S.C.A. § 1151 for chronic disability manifested by loss of balance, pain and seizures due to VA treatment in August and September 1995. The Veteran specifically contends that he had an adverse reaction to methocarbamol prescribed at the VA Medical Center (VAMC) in Reno, Nevada, for back spasm pain. The Veteran claims that the medication resulted in additional disability since then, to include an affected sense of balance, constant pain, and seizures. (See March 2010 Board Hearing Transcript (Tr.) at p. 3). The claims file contains treatment records received from the Social Security Administration. In addition, VA treatment records reflect that the Veteran was prescribed methocarbamol in August and September 1995 for low back spasm. The Veteran then complained of falling down, a limp, incoordination, blurred vision and pain in the joints. VA treatment records dated in September and October 1995 relate that the Veteran probably or apparently had a reaction to the medication. The report of an April 2011 VA examination conducted pursuant to the Board's remand provides that the examiner reviewed the Veteran's claims file and medical records. The report sets forth the relevant history, the Veteran's subjective complaints, and the examination results. The resulting diagnosis was myopathy. Associated problems were identified as loss of balance, constant pain and seizures. The etiology was more likely hereditary/genetic, based on history. The examiner commented that the Veteran's constant pain was less likely as not caused by or the result of the methocarbamol, and that there were no seizures. The examiner stated that the Veteran's loss of balance, falls and tremors were not caused by or the result of the use of methocarbamol, but were symptoms that were more likely worsened by this medication. The examiner stated that it was more likely than not that the Veteran had an unrecognized hereditary/genetic myopathy which got worse after exposure to methocarbamol. The examiner noted that it was her opinion that there was no evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part. She stated that the incident was due to an event not reasonably foreseeable. She explained that since there had been no definite diagnosis done, there was no way VA could have known that the Veteran may have had an underlying genetic or hereditary condition. The Board recognizes that the examiner did not specifically answer the Board's remand question as to whether the Veteran had any additional chronic disability manifested by loss of sense of balance, constant pain and seizures as a result of the prescription of methocarbamol in August and September 1995. Nevertheless, the examiner's discussion makes it clear that in her opinion the Veteran does have an additional disability manifested by loss of balance as a result of VA treatment. She clearly states that the Veteran's loss of balance, falls and tremors were more likely worsened by the methocarbamol, and that the Veteran had an unrecognized hereditary/genetic myopathy which got worse after exposure to it. She also clearly addressed the issue of careless, etc., on VA's part, which she was requested to do only if additional disability was found. In light of the foregoing, the Board finds that compensation is warranted under 38 U.S.C.A. § 1151 for chronic disability manifested by loss of balance due to VA treatment in August and September 1995. In so finding, the Board acknowledges that the April 2011 VA examination found that the Veteran's constant pain was less likely as not caused by or the result of the methocarbamol, and that there were no seizures. ORDER Compensation under 38 U.S.C.A. § 1151 for chronic disability manifested by loss of balance due to VA treatment in August and September 1995 is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs