Citation Nr: 1301671 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 10-07 400 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to compensation under 38 U.S.C.A. § 1151 for a respiratory disability due to VA treatment in December 2003. 2. Entitlement to a total rating based on unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Todd S. Hammond, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran had active service from November 1975 to November 1978. This matter comes before the Board of Veterans Appeals (Board) from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran and his wife testified before the undersigned Veterans Law Judge at the RO in June 2011. A transcript of the hearing has been associated with the file. In February 2012, these issues were remanded for further development. The requested action was taken, and the case has since been returned to the Board for adjudication. FINDINGS OF FACT 1. The preponderance of the evidence establishes that the Veteran did not incur an additional lung disability or permanent aggravation of an existing lung disability as a result of the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing treatment; or due to an event not reasonably foreseeable for treatment received during hospitalization at VA in December 2003. 2. In a May 2012 rating decision, the Veteran was awarded compensation for a psychiatric disorder, diagnosed as posttraumatic stress disorder (PTSD), cognitive disorder not otherwise specified (NOS), organic brain syndrome, and major depressive disorder, under 38 U.S.C.A. § 1151, and a 100 percent rating was assigned, effective February 6, 2007. 3. The Veteran had filed his claim of entitlement benefits under 38 U.S.C.A. § 1151 on February 6, 2007 and his claim for a TDIU on January 28, 2008. CONCLUSIONS OF LAW 1. The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for a lung disability as a result of VA medical treatment have not been met. 38 U.S.C.A. §§ 1151 (West 2002); 38 C.F.R. §§ 3.361 (2012). 2. The issue of entitlement to a TDIU is moot. Vettese v. Brown, 7 Vet App. 31 (1994); Holland v. Brown, 6 Vet App. 443 (1994); Bradley v. Peake, 22 Vet. App. 280 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, the VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in August 2007 and November 2007 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced attorney and has submitted argument in support of his claims. These arguments have referenced the applicable law and regulations necessary for a grant of service connection. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) and VA medical records are in the file. The Veteran has not indicated that he is in receipt of disability benefits from the Social Security Administration (SSA). Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt was relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the Veteran was most recently provided a VA examination in October 2012. The examiner considered the Veteran's complaints related to his breathing/lung problems, as well as the December 2003 VA hospitalization records, private and VA treatment records following the December 2003 hospitalization, and conducting a physical examination. Based on the foregoing, the examiner concluded that the Veteran's lung disability was not due to the hospital care or treatment; or carelessness, negligence, lack of proper skill, error in judgment or similar fault on the part of VA. He found that the Veteran's lung disability, diagnosed as asthma with chronic obstructive pulmonary disease (COPD), was due to his history of smoking, and not any medication and/or intubation during his December 2003 VA hospitalization. In addition, the examiner found no additional disability resulting from the December 2003 VA hospitalization. Therefore, as the opinion was based on review of the claims file, including the Veteran's statements, and provided an extensive rationale for the opinion provided, the Board concludes that the opinion provided is adequate. Given the foregoing, the Board finds the evidence of record to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claim. Given the October 2012 VA examination and report and the subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its February 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria The Veteran essentially contends that his intubation and medication given during a December 2003 VA hospitalization resulted in an additional lung disability. In pertinent part, section 1151 provides for compensation for qualifying additional disability in the same manner as if such additional disability were service- connected. A qualifying additional disability is one in which the disability was not the result of the Veteran's willful misconduct; and, the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran; and, the proximate cause of the disability was the result of 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 was the result of an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002). 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, medical or surgical treatment, or examination without the Veteran's informed consent. In determining whether additional disability exists, the physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.361(b) (2012). It is also necessary to show that additional disability actually resulted from such disease, or that an injury or an aggravation of an existing disease or injury was suffered as a result of hospitalization or medical treatment and is not merely coincidental therewith. The mere fact of aggravation, alone, will not suffice to make the disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(1), (2). 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 (2012). Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner must explain in a language understandable to the patient the nature of a proposed procedure of treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. 38 C.F.R. § 17.32. The patient or surrogate must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise the patient or surrogate if the proposed treatment is novel or unorthodox. The patient or surrogate may withhold or revoke his or her consent at any time. The informed consent process must be appropriately documented in the medical record. 38 C.F.R. § 17.32(d). 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 in each claim to be 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). Factual Background and Analysis A review of the VA treatment records dated prior to December 2003 show a medical history including COPD and chest/nasal congestion. There is also a reference to the Veteran experiencing allergic rhinitis, but without a showing of any significant sinus disease. A review of the December 2003 VA treatment records reflects that the Veteran sought admittance to the VA Medical Center (VAMC) for medical detoxification of alcohol. Upon admittance, he was noted to have a history of COPD and physical examination revealed the Veteran had a cough. During the hospitalization, the Veteran experienced alcohol withdrawal symptoms such as tremors, and he was treated with Librium. Following administration of the Librium, the Veteran experienced urinary incontinence, episodes of confusion, and decreased mentation. He was later administered bupropion and risperdal, following which he was found in bed with uneven respiration and periods of apnea. There were also instances of the Veteran being confused, incontinent, and not himself." He was not able to arise even with painful stimuli. Three attempts were made to intubate the Veteran, the last of which was nasotracheal and successful. This intubation was described as difficult, and there was a high risk of extubation. Physical examination later that day revealed lung sounds that were coarse with an end inspiratory squeak in the left lung, but otherwise clear without wheezing. At discharge, the Veteran's lungs were clear, and he had no complaints. He was diagnosed as having asthma and probable sleep apnea. In its February 2012 decision, the Board found that the Veteran had an additional psychiatric disability due to the careless, negligence, or error in judgment on the part of VA in the process of furnishing care to the Veteran's for alcohol detoxification in December 2003. VA has conceded the VAMC was careless, negligent, or erred in judgment during the Veteran's December 2003 hospitalization. Thus, the main issue before the Board is whether the Veteran experienced an additional lung disability following his December 2003 intubation. After December 2003, the Veteran has sought both private and VA treatment for his lung complaints. He has been diagnosed as having tobacco use disorder and COPD. In November 2006, the Veteran was hospitalized for COPD exacerbation, hypoxic failure, and hypercarbic respiratory failure. At that time, he was intubated without incident and was later transferred to the VAMC. The assessment was respiratory failure, making an inadequate respiratory effort, complicated by alcoholism with current intoxication and concomitant withdrawal. The private physician noted that the Veteran appeared to be in COPD exacerbation and that it appeared as though he has a chronic ventilatory lung disease. In April 2008, a records review VA examination was completed. The VA physician opined that the Veteran's lung disability was not caused by the carelessness, negligence, lack of proper skill, error, and judgment or similar findings of fault on the part of the VA medical providers in December 2003. She indicated that there is no evidence to support the contention that the Veteran has any chronic respiratory problems due to anything that happened during the December 2003 hospitalization. In so noting, she indicated that the Veteran had preexisting lung problems upon hospital admission, including a diagnosis of asthma. She further stated that the Veteran continued to smoke since then, and that his symptoms are likely due to progressive COPD due to tobacco abuse. She also opined that his obesity and sleep apnea could also contribute to his respiratory problems. During the June 2011 Travel Board hearing, the Veteran and his spouse testified that prior to December 2003, the Veteran's breathing problems were allergy related or seasonal. They advised that now, his asthma symptoms are present at least 10 months or more throughout the year and he must use inhalers daily for breathing. The Veteran did testify that doctors had told him to quit smoking and it would be a "fix all" for everything, but due to his psychiatric disorders, he cannot use medications to help him quit smoking. Following the remand, the Veteran was afforded an October 2012 VA examination, during which he was diagnosed as having asthma with COPD, past morbid obesity, sleep apnea, substance abuse, and 80+ pack year history of smoking with current tobacco abuse. Following physical examination and review of the Veteran's claims file, the examiner opined that VAMC treatment did not cause any additional disability of the lungs during the December 2003 VA hospitalization. In so concluding, the examiner noted that the Veteran had an episode of respiratory failure caused by his substance abuse detoxification and it required intubation. Without determining whether the intubation was required due to alcoholic seizure or an adverse drug reaction, the examiner opined that any or all of them did not aggravate his moderately severe distal obstructive airway disease. The examiner further indicated that the intubation itself would not have aggravated the lung disease, and his obstructive airway disease is "undoubtedly" due to his persistent tobacco use. As noted above, in order for a claim pursuant to 38 U.S.C.A. § 1151 to be granted, it must be definitively determined that an additional disability occurred as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA. Pursuant to 38 C.F.R. § 3.361, this can be shown by establishing that VA treatment proximately caused additional disability, and 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 the Veteran's informed consent. In this case, the most probative evidence of record fails to establish that the Veteran incurred an additional lung disability as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA. In that regard, the Board finds the October 2012 VA examiner's opinions of significant probative value. The examiner reviewed the Veteran's claims file and contentions, but concluded that the Veteran did not have any additional lung disabilities other than asthma with COPD and sleep apnea. The examiner further concluded that the Veteran's current lung disability is due to his smoking history and was not aggravated by anything (intubation, possible seizure, or possible drug reaction) during his December 2003 hospitalization. The examiner's conclusions are supported by the other private and VA medical professionals of record who have noted the Veteran's significant smoking history and its likely relationship to his current lung disability. Further an April 2008 VA examiner found that the Veteran experienced asthma both before and after his December 2003 VA hospitalization, and found that no chronic respiratory problems were due to anything that happened during the December 2003 hospitalization. By contrast, the Board has considered the Veteran's contentions that his current lung problems are due to his December 2003 intubation and treatment with bupropion and risperdal of significantly less probative value. Certainly, the Veteran can attest to factual matters of which he has first-hand knowledge, such as subjective complaints of increased difficulty breathing, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). He is not, however, necessarily competent to render an opinion as to the cause or etiology of such problems because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). As discussed, medical professionals have considered the Veteran's reports of increased lung problems following the December 2003 hospitalization, but have concluded that these problems are not attributable to any intubation, alcoholic seizure, or medicine reaction during the hospitalization. Similarly, these examiners and healthcare providers have attributed the Veteran's asthma with COPD to his extensive smoking history. Additionally, the medical evidence of record shows that the Veteran indeed had COPD prior to December 2003, and that his breathing problems were not just related to allergies as alleged by the Veteran. Given the complex nature of the medical questions involved in this case, the Board ultimately places far more probative weight on the opinions of the competent VA and private health care specialists, who considered the Veteran's lay reports but determined that the Veteran did not have an additional lung disability due to his December 2003 VA hospitalization. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Board is sympathetic to the Veteran's contentions of his perceived increased lung problems. The Board finds, however, that the preponderance of the probative evidence of record simply does not support that the Veteran incurred a permanent aggravation or other additional disability of the lungs following his December 2003 VA hospitalization. As such, the criteria for service connection under 38 U.S.C.A. § 1151 have not been met. Accordingly, as the preponderance of the evidence is against the claim for service connection benefits pursuant to 38 U.S.C.A. § 1151, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU With respect to the Veteran's claim for a TDIU, the Board notes that the Veteran was recently awarded a 100 percent rating for his psychiatric disorder (granted under (38 U.S.C.A. § 1151), effective February 6, 2007, the date the Veteran filed his underlying section 1151 claim. A TDIU rating contemplates that the schedular rating is less than total. 38 C.F.R. § 4.16(a). Because VA determined that the Veteran's psychiatric disorder warrants a 100 percent rating, effective February 6, 2007(throughout the period of the claim), and because the Veteran's claim for a TDIU was filed during the claim period (in January 2008), the claim for a TDIU is rendered moot. The Board recognizes that it is not categorically true that assignment of a total schedular rating always renders a TDIU claim moot. See Bradley v. Peake, 22 Vet. App. 280 (2008). In the Bradley case, the Court held that a TDIU rating could be warranted in addition to a schedular 100 percent evaluation, where the TDIU could be granted for a disability other than the disability for which a 100 percent rating was in effect, explaining that under such circumstances, there was no "duplicate counting of disabilities." Bradley, 22 Vet. App. at 293. Unlike the situation in Bradley, however, the Veteran in this case is only receiving compensation for one disability, which is the psychiatric disorder for which a 100 percent scheduler rating has been assigned. Therefore, Bradley is distinguishably from the instant case, and the award of a 100 percent scheduler evaluation does indeed render the TDIU claim moot. ORDER Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a lung disability is denied. The appeal for entitlement to a TDIU is dismissed. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs