Citation Nr: 1312724	
Decision Date: 04/17/13    Archive Date: 05/02/13

DOCKET NO.  10-17 163	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a headache disability.


REPRESENTATION

Appellant represented by:	Swords to Plowshares, Veterans Rights Organization, Inc.


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

J. M. Kirby, Counsel


INTRODUCTION

The Veteran served on active duty from April 1960 to April 1963.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.  

The Veteran testified at a May 2012 Board hearing held by the undersigned sitting at the RO.  A transcript of that hearing is of record.


FINDING OF FACT

The evidence establishes that the Veteran's headache disability resulted from fault on the part of the VA health care providers who provided treatment in June 2007.


CONCLUSION OF LAW

The criteria for compensation pursuant to 38 U.S.C.A. § 1151 for a headache disability have been met.  38 U.S.C.A. § 1151 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2012).





REASONS AND BASES FOR FINDING AND CONCLUSIONS

In light of the favorable action taken herein, discussion of whether VA has met its duties of notification and assistance is not required, and deciding the appeal at this time is not prejudicial to the Veteran.

The Veteran asserts that compensation is warranted for his symptoms under the provisions of 38 U.S.C.A. § 1151, due to the actions of VA medical personnel.  Specifically, in June 2007, the Veteran visited the Oakland VA Medical Center for treatment of a kidney stone.  He was taken by wheelchair to the X-ray area.  When he stood up to ascend onto the X-ray machine, unassisted by VA personnel, he felt lightheaded, fell forward, hit his head on the X-ray machine, and momentarily lost consciousness.  He began to experience a headache at the time of the incident, and has continued to experience periodic headaches ever since.
 
Under VA laws and regulations, when a claimant suffers an injury or an aggravation of an injury resulting in additional disability or death as the result of VA training, hospitalization, medical or surgical treatment, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such disability or death were service connected.  38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). 

In determining whether additional disability exists, VA compares the claimant's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to his or her condition after such care or treatment.  38 C.F.R. § 3.361(b) (2012).  To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the claimant's additional disability.  Merely showing that a claimant received care or treatment and that he or she has an additional disability does not establish cause.  38 C.F.R. § 3.361(c) (1) (2012).  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) (2012). 

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 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 claimant'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) (2012). 

Whether the proximate cause of a claimant'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) (2012). 

In Viegas v. Shinseki, the Court of Appeals for the Federal Circuit (Federal Circuit) held that there was nothing in the plain language of 38 U.S.C.A. § 1151 that required a veteran's injury to be "directly" caused by the "actual provision" of medical care by VA personnel.  Instead, the statute requires only a "causal connection," which includes injuries that occur in a VA facility as a result of VA's negligence.  Viegas v. Shinseki, 705 F.3d 1374, 1378 (Fed. Cir. 2013).  

The record shows that the Veteran's headaches began at the time of the June 2007 incident.  VA treatment records dated prior to the incident as far back as 2002 do not show that the Veteran reported experiencing headaches, to include a record from a May 2004 VA visit at which the Veteran specifically denied having headaches.  To that end, multiple July 2007 and August 2007 VA treatment records document a consistent report by the Veteran that his headaches began at the time of the June 2007 incident.  The Veteran's competent and credible reports as to the onset of his headaches are especially probative.  See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (holding that a Veteran's lay statement can be competent evidence of symptoms that are capable of lay observation). 

In light of the holding in Viegas, and after review of the record, the Board finds that the evidence establishes that the Veteran's headache disability resulted, at least in part, from the treatment the Veteran received at a VA facility in June 2007, and negligence by VA personnel who were treating him.  Multiple opinions of record, to include those made by VA staff neurologists in August 2007 and March 2008, find that the Veteran's headaches were as likely to be "post traumatic migraine" headaches as they were to have some other cause, such as being "rebound" headaches stemming from analgesic use.  To that end, the record establishes that the Veteran was in a significant amount of pain at the time he visited Oakland VA Medical Center in June 2007, to the extent that he repeatedly requested pain medications while trying to pass a kidney stone.  VA treatment records from that day indicate that the Veteran was taken from radiology in a wheelchair; this tends to suggest that the Veteran's condition may have required precaution, prohibiting him from walking to the radiology department under his own power.  Further, the Veteran's contention that he was left unassisted in transferring to the X-ray table is not contradicted by the record; for VA personnel to allow him to stand and transfer to the table without assistance is wholly inconsistent with having previously required the precaution of wheelchair-based transport.  Clearly, then, there is a "causal connection" between the Veteran being allowed to self-transfer from the wheelchair to the X-ray table, and him hitting his head on the X-ray machine after becoming lightheaded.  Viegas, 705 F.3d at 1378.  

Ultimately, the evidence establishes that the VA personnel responsible for the Veteran's care during his Oakland VA Medical Center visit in June 2007, during which he underwent X-rays in conjunction with treatment for a kidney stone, constituted a failure to "exercise the degree of care that would be expected of a reasonable health care provider."  38 C.F.R. § 3.361.  Accordingly, compensation under the provisions of 38 U.S.C.A. § 1151 for a headache disability is warranted.


ORDER

Subject to the law and regulations governing payment of monetary benefits, compensation under the provisions of 38 U.S.C.A. § 1151 for a headache disability is granted.



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs