Citation Nr: 1304570 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 10-15 664 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for a stomach ulcer, secondary to VA treatment of a November 2007 left ankle fracture. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from March 1952 to February 1956. He received the Air Crew Member Badge. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the benefit sought on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The competent medical, and competent and credible lay, evidence of record demonstrates that VA treatment of a November 2007 left ankle fracture resulted in an additional disability, a stomach ulcer, 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 the surgical treatment. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C.A. § 1151 for a stomach ulcer, secondary to VA treatment of a November 2007 left ankle fracture, have been met. 38 U.S.C.A. § 1151, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 3.361 (2012). 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) (2012). 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. 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). 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. 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). The Veteran contends that he now has a stomach ulcer as a result of VA treatment of a November 2007 left ankle fracture. He asserts that in mid-December 2007, VA prescribed him piroxicam, a non-steroidal anti-inflammatory drug (NSAID), for left ankle pain despite the fact that VA also prescribed him warfarin (Coumadin) and he had a known history of ulcers. In support of his claim, the Veteran submitted an Internet article from the U.S. National Library of Medicine and the National Institutes of Health. That article relates that NSAIDs can cause ulcers, bleeding or holes in the stomach or intestine. These problems could happen at any time during treatment and without warning symptoms. A November 2007 VA treatment report relates that the Veteran had been seen November 24 at VA Kerrville, where he had a left distal fibula fracture splinted. A list of prescriptions included "warfarin (Coumadin)" to prevent clots. VA medical records reflect that on December 8, 2007, VA gave the Veteran a prescription for a 90-day supply of piroxicam, with three refills. A January 2008 VA treatment report provides that the Veteran was on warfarin. The Board finds it significant that the report fails to state that the Veteran was also on piroxicam, even though it was prescribed by VA, and in fact even erroneously states that there were no new meds. A February 2008 discharge summary from Valley Hospital Medical Center (Valley Hospital) provides that the Veteran had been admitted by paramedics for a GI bleed. The night before admission, the Veteran developed pain, nausea and vomiting. The discharge summary notes that the Veteran took Coumadin and denied "NSAIDs" and recent history of frequent "NSAID" use. In this regard, in April 2009 correspondence the Veteran states that he did inform the hospital that he was on an "anti-inflammatory" but could not remember its name [piroxicam]. He said that at that time he did not know it was referred to as an NSAID. Later, his wife gave the hospital a complete list of his medications, which included piroxicam. The discharge summary also notes that an EGD conducted by gastroenterology revealed a large duodenal ulcer. The discharge summary provides a pertinent assessment of coffee-ground emesis and melena, most likely secondary to upper GI bleed. The discharge summary discouraged the use of NSAIDS for the rest of the Veteran's life. It instructed the Veteran to resume all medications except Coumadin, aspirin and all NSAIDs. He was to follow up with his primary care physician for his large duodenal ulcer in 1-2 weeks. Corresponding consultation and physical examination reports from Valley Hospital provide that the Veteran reported that just within the past few weeks he fractured his left foot for which he had been treated with a large amount of "anti-inflammatory" medications. As a consequence, 10 days earlier he started having abdominal discomfort and vomiting. At that point, he started having coffee ground emesis and he was diagnosed with significant anemia, probably due to the GI bleed. He had been taking Coumadin for the last three years. A February 15, 2008, VA report provides that the Veteran was to discontinue piroxicam. To the Board, this is a tacit recognition by VA healthcare providers that the piroxicam was harming the Veteran's health. The Board finds that the foregoing evidence, viewed in its entirety, shows that it is at least as likely as not that the Veteran suffered additional disability as a result of VA medical treatment. The foregoing evidence also shows 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. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. Specifically, the evidence shows that VA's treatment of the Veteran with piroxicam while it was also treating him with warfarin caused him to develop a large duodenal ulcer, and was a failure to exercise the degree of care that would be expected of a reasonable health care provider. 38 C.F.R. § 3.361(d)(1)(i). Accordingly, entitlement to compensation under 38 U.S.C.A. § 1151 for a stomach ulcer, secondary to VA treatment of a November 2007 left ankle fracture, is warranted. ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 for a stomach ulcer, secondary to VA treatment of a November 2007 left ankle fracture, is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs