Citation Nr: 1237640 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 07-17 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for quadraparesis status post cervico-cranial fusion due to hospitalization at the Memphis VA Medical Center from December 2004 to March 2005, including a January 2005 intubation. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran had active military service from June 1968 to December 1970. This appeal to the Board of Veterans' Appeals (Board) is from a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In April 2008, the Veteran withdrew his request for a video hearing before a Veterans Law Judge. See 38 C.F.R. § 20.702(e) (2012). In May 2010, the Board remanded the appeal for additional development. FINDINGS OF FACT 1. On December 26, 2004, the Veteran was hospitalized due to pneumonia and sepsis at the Memphis VA Medical Center (VAMC) after complaining of at least a two week history of stiffness and joint pain, dyspnea, darkening urine, and other symptoms and a history of rheumatoid arthritis, and examination and laboratory findings at that time revealed a fever, elevated liver function tests (LFTs), Methicillin-Susceptible S. Aureus (MSSA), and yeast; on January 3, 2005, the Veteran went into respiratory distress and, after several attempts, an emergency intubation was carried out without cervical spine immobilization and he remained intubated until January 7, 2005; following the intubation and while still hospitalized the claimant experienced ever increasing neck pain and stiffness and loss of sensation in his extremities and diminished bowel and bladder control thereafter diagnosed as quadraparesis; and on March 2, 2003, he was transferred to a private hospital for a cervico-cranial fusion and placed in a cervical halo on March 3, 2005. 2. The evidence of record does not reflect that the Veteran or anyone acting on his behalf signed an informed consent form for the VA intubation in January 2005. 3. Quadraparesis status post cervico-cranial fusion was not a reasonably foreseeable consequence of the VA intubation in January 2005. CONCLUSION OF LAW The requirements for compensation under 38 U.S.C.A. §§ 1151 for quadraparesis status post cervico-cranial fusion have been met. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2011); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). However, given the fully favorable decision contained herein, the Board finds that further discussion of the VCAA notice provided to the Veteran is unnecessary, since any deficiency in the timing or content of such notice would constitute harmless error. To whatever extent the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as a disability rating and effective date, the Board finds that the RO will address any applicable downstream issues when effectuating the award and therefore any failure to provide this notice at this junction cannot prejudice the claimant because he will be free to appeal any unfavorable finding by the RO regarding the disability rating and effective date. The 1151 Claim The Veteran and his representative claim, in substance, that the appellant's quadraparesis status post cervico-cranial fusion was the consequence of negligent VA treatment, to include a January 2005 intubation at the Memphis VAMC. Specifically, it is alleged that VA knew of the Veteran's history of rheumatoid arthritis and knew or should have known of the weakness that this disease process caused in the discs of his cervical spine. Therefore, because VA's failed to properly immobilize his neck prior to the January 2005 intubation, it negligently caused a cervical spine injury which led to his quadraparesis and subsequent cervico-cranial fusion. The Board would like to first point out that because the Veteran's claim for benefits in accordance with the provisions of 38 U.S.C.A. § 1151 was received by VA in August 2005, controlling laws and regulations provide that in order to warrant compensation he must demonstrate that the VA hospital care, medical or surgical treatment, or examination in question resulted in an additional disability and 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 such care, treatment, or examination, or that the proximate cause of the additional disability was an event that was not reasonably foreseeable. See also VAOPGCPREC 40-97, 63 Fed. Reg. 31,263 (1998). 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). 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). 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). 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. In this regard, 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 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). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim and what the evidence in the claims folder shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). With the above criteria in mind, the Board will first consider whether the Veteran has additional disability for the purposes of VA compensation because of his hospitalization at the Memphis VAMC from December 2004 to March 2005 including a January 2005 intubation by comparing his physical condition immediately prior to his hospitalization to his condition after his hospitalization. See 38 C.F.R. § 3.361(b). In this regard, the claims file shows that the Veteran was admitted to the Memphis VAMC on December 26, 2004, with complaints of stiffness and joint pain, dyspnea, darkening urine, and other symptoms. The Veteran was noted to have fever and elevated liver function tests (LFTs). Testing showed Methicillin-Susceptible S. Aureus (MSSA) and yeast. It was also noted at this time that his medical history included rheumatoid arthritis and that he had been on medication for this disability for the last year. He was diagnosed with sepsis and pneumonia and was transferred to the medical intensive care unit (MICU). On January 3, 2005, the Veteran went into respiratory distress and, after several attempts, an emergency intubation was carried out and he remained intubated until January 7, 2005. Despite the Veteran's known history of rheumatoid arthritis, VA treatment records memorializing the intubation do not show that any steps were taken to immobilize the Veteran's neck prior to or during the intubation. Subsequently, the Veteran noticed his neck was tilted to one side and was difficult to move. Around January 21, 2005, the Veteran developed right-sided weakness. A computed tomography (CT) scan showed severe spinal stenosis at the C-1 level with narrowing of the preodontoid space. By mid-February 2005, the Veteran's weakness had progressed to all extremities and included diminished bowel and bladder control. On March 2, 2005, he was transferred to a private hospital where on March 3, 2005, he received a transoral odontoidectomy and occiput to C-4 (cervico-cranial) fusion and placed in a cervical halo. Subsequently, he was returned to the Memphis VAMC. The Veteran's treatment records establish he has since suffered from quadraparesis status post cervico-cranial fusion. Lastly, in February 2011 the Veteran filed with VA three medical opinions he obtained in connection with a tort claim arising out of his hospitalization and treatment at the Memphis VAMC from December 2004 to March 2005 including the January 3, 2005, intubation. These three opinions were uniform in opining, among other things, that given the appellant's history of rheumatoid arthritis and complaints of multiple joint pain VA's failure to immobilize his cervical spine prior to and during the January 3, 2005, intubation caused the cervical spine injury that led to his subsequent quadraparesis and cervico-cranial fusion. These opinions are not directly contradicted by any other medical opinion of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The Veteran's medical records establish that prior to his hospitalization on December 26, 2004, and intubation without cervical spine immobilization on January 3, 2005, he did not have quadraparesis status post cervico-cranial fusion and now he does. Therefore, the Board finds that he has the required additional disability. The Board will next turn to the question of whether this additional disability was reasonably foreseeable consequences of his hospitalization and intubation and whether the Veteran provided an informed consent to this particular aspect of his care. See 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361(c)(1); Also see VAOPGCPREC 40-97 (Dec. 31, 1997). As was noted above, the answer to the reasonably foreseeable question is 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 the type of risk that a reasonable health care provider would have disclosed as part of the procedures for informed consent in accordance with 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361(d)(2). Initially, the Board notes that, while the record reveals thousands of VA hospitalization records, there are no informed consent forms of record with respect to the January 3, 2005, intubation or, for that matter, in connection with any of the other procedures performed during the Veteran's long hospitalization. Moreover, given the comprehensive nature of the record, the Board has no reason to believe that any informed consent form exists but was not provided to VA when it requested the Veteran's records from the Memphis VAMC. Next, the Board finds that the uncontradicted evidence of record shows that the Veteran was hospitalized at the Memphis VAMC in December 2004 for pneumonia and sepsis and was discharged in March 2005 with quadraparesis to undergo a cervico-cranial fusion at a private hospital. Moreover, despite the VA obtaining medical opinions on three occasions as to the § 1151 question, none of these examiners specifically opined that quadraparesis status post cervico-cranial fusion was a foreseeable risk of his December 2004 VA hospitalization for sepsis and pneumonia with subsequent January 3, 2005, intubation. Therefore, with no medical evidence against such a proposition, the Board will find that the Veteran's quadraparesis status post cervico-cranial was not a foreseeable risk of his December 2004 VA hospitalization for sepsis and pneumonia with January 3, 2005, intubation. In summary, without addressing whether there was or was not evidence showing that the proximate cause of the Veteran's quadraparesis status post cervico-cranial was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care at the Memphis VAMC from December 2004 to March 2005, in view of the fact that the Veteran was hospitalized at the Memphis VAMC in December 2004 for pneumonia and sepsis, and was discharged in March 2005 with quadraparesis, and that there is no evidence that the Veteran was ever placed on notice that such an adverse result concerning a totally different system of the body was a potential consequence of his initial VA treatment, or that he ever consented to same, the Board will give the Veteran the benefit of the doubt, and find that there is sufficient evidence that his quadraparesis status post cervico-cranial fusion was not a reasonably foreseeable consequence of VA treatment, and that entitlement to compensation for such disability pursuant to 38 U.S.C.A. § 1151 is therefore warranted. ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 for quadraparesis status post cervico-cranial fusion is granted. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs