Citation Nr: 1311112 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 09-40 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a finding of total disability based on individual unemployability (TDIU). 2. Entitlement to payment of compensation benefits under 38 U.S.C.A. § 1151 for a heart murmur resulting from VA treatment on November 7, 2006. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from September 1999 to December 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Wichita, Kansas, Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran has since relocated, and the Roanoke RO holds jurisdiction. During the pendency of the appeal, the RO has granted entitlement to several of the benefits sought, including entitlement to service connection for depression and a low back disability. These represent full grants of the benefits sought on appeal, and hence there remains no question for consideration by the Board with respect to those matters. The sole issues remaining on appeal are as listed above; the issue with regard to 38 U.S.C.A. § 1151 has been recharacterized to better reflect the allegations of the Veteran and recognize her sole outstanding manifestation of disability. Importantly, no inference of a claim for increased evaluation of migraines is warranted, as consideration of the assigned evaluation was undertaken in the March 2008 decision, and not appealed. The Veteran testified at January 2013 hearing held before the undersigned Veterans Law Judge at the Board's Washington, DC, offices. A transcript of that hearing is associated with the Veteran's electronic claims file, maintained as part of the Virtual VA system. All records in Virtual VA have been considered in connection with the current appeal. Following the January 2013 hearing, the Veteran, through her representative, submitted additional evidence in the form of a National Institutes of Health (NIH) research protocol, along with a waiver of initial RO consideration of such. FINDINGS OF FACT 1. On the record at the January 2013 hearing, prior to promulgation of any Board decision, the Veteran stated her desire to withdraw her appeal with regard to entitlement to TDIU. 2. There is no diagnosis of any current cardiovascular condition manifested by a heart murmur. 3. No carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part is demonstrated in connection with the November 7, 2006 VA examination. 4. Palpitations and irregularities of heart beat are known potential complications of anemia and related treatment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal having been met, the Board does not have appellate jurisdiction to review the claim of entitlement to TDIU. 38 U.S.C.A. §§ 7105(a), 7108 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2012). 2. The criteria for payment of compensation benefits under 38 U.S.C.A. § 1151 for a heart murmur resulting from VA treatment on November 7, 2006, are not met. 38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision, or may be withdrawn on the record at a hearing. 38 C.F.R. §§ 20.202, 20.204(b). At the January 2013 Board hearing, the Veteran stated that she wished to withdraw her appeal with regard to a claim of entitlement to TDIU; her representative was present and agreed to this. The Veteran's representative did state in a February 2013 (erroneously dated as February 7, 2012) Informal Hearing Presentation that it had cautioned her against withdrawing the claim, as there existed the possibility that TDIU entitlement could form the basis of entitlement to a higher level of special monthly compensation. At no point, however, has an actual reversal of the clearly stated intent to withdraw the appeal been manifested. As the Veteran has withdrawn the appeal of that issue in accordance with 38 C.F.R. § 20.204, the Board no longer has appellate jurisdiction and can take no further action on the matter. VA's Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. 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 (2011). August 2007 and February 2008 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The February 2008 letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claim was subsequently readjudicated, most recently in a November 2012 supplemental statement of the case (SSOC). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran's service treatment records and VA medical treatment records have been obtained, to include the November 7, 2006, VA examination report underlying the claim. The Veteran did not identify any private treatment records pertinent to the appeal. Some private records are associated with the claims file, but bear on service-connected disabilities and not on the 38 U.S.C.A. § 1151 claim. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that she is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). No specific VA examination was afforded the Veteran, or causation opinion sought. Instead, the VA medical center (VAMC) conducted an investigation of the allegations of negligence and presented findings in a February 2008 memorandum. Such is adequate for rating purposes, as the VAMC addressed the relevant facts; while the conclusions reached may not be legally supportable, they do, in light of the other undisputed facts of record, properly state the circumstances of the case. Moreover, repeated VA examinations in connection with other pending claims include clinical findings relevant to and adequate for consideration of the 38 U.S.C.A. § 1151 claim. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis In pertinent part, the current version of 38 U.S.C.A. § 1151 provides that additional disability resulting from VA hospital care, medical or surgical treatment, or examination shall be treated as if it were service-connected, where it is shown that the additional disability was the result of "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of [VA]" or an event not reasonably foreseeable. 38 U.S.C.A. § 1151. To determine whether a Veteran has an additional disability, VA compares a Veteran's condition immediately before the beginning of the medical treatment upon which the claim is based to her condition after such treatment has stopped. 38 C.F.R. § 3.361(b). To establish that VA treatment caused additional disability, the evidence must show that the medical treatment resulted in the additional disability. Merely showing that a Veteran received treatment and that she had an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment proximately caused a veteran's additional disability, it must be shown that the medical treatment caused the his or her additional disability; 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 a Veteran's or, in appropriate cases, her representative's informed consent. 38 C.F.R. § 3.361(d). Whether the proximate cause of a veteran's additional disability 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 of this chapter. 38 C.F.R. § 3.361(d)(2) . The Veteran is claiming entitlement to compensation under 38 U.S.C.A. § 1151. She contends that at a November 6, 2007, VA compensation and pension examination, the examiner failed to properly inform her of the need for a blood transfusion or iron infusion for treatment of service-connected anemia. It was only after seeking further treatment over the next few days that she received such treatment, and had an adverse reaction. She maintains that she developed a heart murmur due to the treatment. She does not contend that the adverse reaction itself was caused by any delay in treatment, or that it was the result of any fault on the part of VA. Her allegation is simply that the VA examiner erred in the information and medical advice furnished her. A review of the competent and credible evidence of record reveals no evidence of any diagnosis of a heart condition which would cause or account for a heart murmur. The Veteran has subjectively reported "palpitations" and chest pain, but such competent lay observations of symptomatology are not competent evidence of an underlying heart condition. In fact, doctors who noted the Veteran's complaints, such as the October 2007 VA examiner, specifically stated that there were no ascertainable murmurs, and no current heart conditions. VA treatment records show continued treatment for service-connected hypertension, but no diagnosis of or treatment for any heart disease or disorder. Similarly, there is no notation of a formal finding of any murmur. Accordingly, there can be no finding of additional disability with respect to the heart, and the claim cannot be sustained. Further, even if the Veteran's reports of palpitations following the November 2006 examination were considered competent evidence of additional disability, the evidence of record fails to show that such was the result of any fault or failure on the part of VA. Although the Veteran has alleged the VA examiner failed in a duty to inform her of her specific treatment options given the level of anemia demonstrated in blood tests, she reports that he advised her to seek treatment from her primary care physician the next day. Inherent in this advice is an acknowledgment of the potential seriousness of the Veteran's condition and the need for some form of treatment. The Veteran did not have a therapeutic doctor-patient relationship with the examiner; he saw her once in connection with her claim to establish the current status of her anemia disability. As was indicated in the February 2008 VAMC memorandum, it was not therefore his place to advise specific treatment. Advising her of the need for follow-up with her primary care provider, who was in a better position to evaluate the Veteran and plan treatment, met his duty toward the Veteran. The NIH protocols submitted by the Veteran following her hearing support this conclusion. First, importantly, the NIH does not indicate that the Veteran's chronic anemia was acutely life threatening. There was no duty incumbent upon the November 2006 VA examiner to respond to an imminent emergency. Second, the NIH provides that there are multiple treatment options for a patient with the degree and form of anemia demonstrated by the Veteran; selection among them is best made in a clinical setting. The VA examiner, in referring the Veteran for immediate (but not emergency) treatment with the personnel best informed of her health status fully complied with the best practices described by NIH. Accordingly, there is no showing of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by the November 7, 2006, VA examiner. The Veteran's own statements and submissions document his compliance with all duties incumbent upon him in connection with her care. Finally, on the November 9, 2006, request for treatment signed by the Veteran authorizing the iron infusion, listed and acknowledged risks included chest pains and palpitations. Clearly, even if her reports of such are accepted as evidence of additional disability, the possibility of such was actually foreseen and accepted as a risk. In the absence of fault by VA, only events not reasonably foreseeable may be compensated. In sum, the evidence of record fails to show any additional disability following the November 7, 2006, VA examination. The VA examiner fully complied with the applicable standard of care by urging the Veteran to seek further treatment, which she did within 48 hours. That treatment fully complied with that which she believes, and which competent medical evidence shows, was necessary and advisable. Complications of that treatment for service-connected anemia other that a heart murmur have been identified and compensated. There is simply no evidence of any current heart disability attributable to any error or omission by VA in examining the Veteran. The preponderance of the evidence is against the claim; there is no doubt to be resolved. Entitlement to compensation benefits under 38 U.S.C.A. § 1151 for a heart murmur resulting from VA treatment on November 7, 2006, is not warranted. ORDER The appeal for entitlement to TDIU is dismissed. Entitlement to compensation benefits under 38 U.S.C.A. § 1151 for a heart murmur resulting from VA treatment on November 7, 2006, is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs