Citation Nr: 1325780 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 10-29 562 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for bone deterioration resulting in bilateral hip arthroplasty. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION 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). The Veteran, who is the appellant, served on active duty from November 1955 to November 1957. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in June 2008 of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction was later transferred to the RO in Montgomery, Alabama. In July 2012, the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. This case was previously before the Board in December 2012, at which time it was remanded for further development, to include obtaining a VA examination and opinion. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's bone deterioration resulting in bilateral hip arthroplasty was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault as a result of VA treatment to include the prescription of steroids for his steroid-dependent asthma/COPD, nor was it the result of an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for bone deterioration resulting in bilateral hip arthroplasty have not been met. 38 U.S.C.A. §§ 1151, 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.361 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Duty to Notify Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in January 2008 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. In the instant case, the appellant was never informed of how VA determines disability ratings and effective dates. However, as the instant decision denies compensation benefits under 38 U.S.C.A. § 1151, no disability rating or effective date will be assigned. Accordingly, any absence of Dingess notice is moot. Therefore, no further development is required regarding the duty to notify. Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder, as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a July 2012 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's December 2012 remand, the RO sought additional treatment records from VA facilities prior to 1985 and Social Security medical records. However, it was determined that these records are no longer available and further efforts to obtain them would be futile. The Veteran was duly notified of the inability to obtain these records as required by 38 C.F.R. § 3.159(e). In addition, VA provided the Veteran with a medical examination and opinion in May 2013. This examination contained all information needed to rate the disability. Indeed, the examiner reviewed the objective evidence of record and documented the Veteran's current complaints. Moreover, the VA examiner performed a thorough clinical evaluation, then offered an opinion as to the relevant questions and standards of care relative to 38 U.S.C.A. § 1151 claims, accompanied by a rationale. Therefore, this examination is adequate for VA purposes. Thus VA has complied with the December 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Further regarding the duty to assist, the United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At his hearing the undersigned identified the issue, sought information as to treatment to determine whether all relevant records had been obtained, and sought information as to any changes in the disability since the last examination. Ultimately the claim was remanded for a new examination. The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Compensation Under 38 U.S.C.A. § 1151 Under 38 U.S.C.A. § 1151, compensation shall be awarded for a qualifying additional disability of a Veteran in the same manner as if such additional disability were service-connected. For purposes of this section, a disability is a qualifying additional disability if 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 under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in 38 U.S.C.A. § 1701(3)(A), and the proximate cause of the disability was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C.A. § 1151. To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in a Veteran's additional disability. Merely showing that a Veteran received care or treatment and that the Veteran has an additional disability does not establish causation. See 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. See 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, it must be shown that the hospital care or medical or surgical treatment caused the Veteran's 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 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. See 38 C.F.R. § 3.361(d)(1). Consent may be express or implied as specified under 38 C.F.R. § 17.32(b), as in emergency situations. 38 C.F.R. § 3.361(d)(1). 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. See 38 C.F.R. § 3.361(d)(2). Pursuant to the language of the aforementioned law and regulation, 38 U.S.C.A. § 1151 claims for additional disability are treated similarly to claims for service connection. See Jones v. West, 12 Vet. App. 383 (1999); Boggs v. West, 11 Vet. App. 334 (1998). Hence, to establish entitlement, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of incurrence or aggravation of an injury as the result of hospitalization, medical or surgical treatment; and (3) medical evidence of a nexus between that asserted injury or disease and the current disability. Id.; see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Facts and Analysis The Veteran has received treatment for his nonservice-connected disability of asthma or chronic obstructive pulmonary disease (COPD) through his local VA medical facility for many years. Included in that treatment has been an ongoing prescription for steroids, specifically prednisone. The Veteran asserts that his bilateral hip arthroplasties, conducted in 1985 and 1988, with revisions in 1989, 1992, and 2005, were due to bone deterioration caused by the prolonged use of prednisone in treating his asthma. He seeks compensation under the provisions of 38 U.S.C.A. § 1151. The record shows that the Veteran began treatment of his asthma with prednisone in 1982 at a dosage of 60 mg, an amount which fluctuated over time but continued until at least 1990, when it was decreased to 10 mg after the documented deterioration of his hips. Another document dated in 1992 indicates further use of prednisone, as do more recent records. The Veteran has reported, including in November 1988, that he has had steroid-dependent asthma since childhood. The record also shows that he has a bilateral hip disability with arthroplasty in the right hip in 1985 and revisions in 1989 and 2005, and arthroplasty in the left hip in 1988 and a revision in 1992. He has constant pain, restricted motion, loss of muscle strength, and needs to use a walker as a result of his hip disability. VA treatment records from May 1992 and November 1993 both note a diagnosis of avascular necrosis of both hips as a result of steroid use. An August 2012 treatment note by the Veteran's medical provider stated that after reviewing the medical records, the Veteran's avascular necrosis was determined to be as likely as not related to his long-term steroid use for his lung condition. A February 1988 hospital discharge summary noted that the Veteran had diagnoses of COPD, shortness of breath, bilateral hip pain and early avascular necrosis of the bilateral femoral heads. He had been admitted after several weeks of increasing dyspnea and had a history of chronic steroid use for more than 5 years. He had been seen in the emergency room twice that week for bronchospasm. He was treated with medications including intravenous steroids while in the hospital and continued to have wheezing through the second and third days. During his hospitalization, he was given an MRI, which detected signs of early avascular necrosis. At the July 2012 hearing, the Veteran testified that he was treated with prednisone for his asthma/COPD for approximately 9 years, after which he switched to albuterol. Reportedly, many of his doctors had told him that his subsequent bone deterioration, specifically in his hips, which resulted in hip replacements was due to the use of prednisone. He stated that he stopped taking prednisone after his hip surgeries, in about 1994, because it just "ate [his] bones up." He further testified that when he was first prescribed prednisone for his asthma that he was not informed that one possible side effect was osteoporosis or bone deterioration. On May 2013 VA examination and opinion, the examiner reviewed the extensive VA treatment records relative to the Veteran's nonservice-connected asthma. She noted that the Veteran was treated on multiple occasions in 1985-1987 for bronchospasm with shortness of breath, including several hospital admissions. A treatment note from December 1985 stated that the Veteran had been hospitalized over 50 times in the previous 4 years with bronchospasm and each time was treated with prednisone and a plan to taper the amount of that steroid. In December 1985 and again in July 1986 and August 1987 the Veteran was admitted to the hospital and stated that he had run out of his prescribed prednisone and stopped taking it; on each occasion he presented with bronchospasms. The pattern was repeated many times over the subsequent years. Because of the continued recurrence of bronchospasm severe enough to require hospitalization each time the prednisone was reduced or omitted, the Veteran was diagnosed in December 1985 with steroid-dependent COPD. Based on the medical evidence, particularly the Veteran's long treatment history for asthma, the examiner agreed with the diagnosis of steroid-dependent asthma/COPD and stated that the use of steroids was medically indicated despite the known common side effect of causing bone deterioration. The examiner noted that he had been started on calcium carbonate, a dietary supplement used for insufficient calcium to sustain healthy bones and muscles, in 1988. The examiner offered the opinion that the prednisone was not prescribed in a manner that showed carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of VA, nor was the bone deterioration as a result of steroid use an event not reasonably foreseeable. As noted above, claims brought under 38 U.S.C.A. § 1151 in essence require evidence that treatment by VA resulted in additional disability to the Veteran because of: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or (B) an event not reasonably foreseeable. In this instance, the record shows the use of steroids, in particular prednisone, as treatment for the Veteran's severe asthma/COPD. The additional disability, bone deterioration in both hips leading to bilateral arthroplasties, is also shown, and the medical evidence supports a conclusion that the use of prednisone caused the bone deterioration. However, the above two facts alone are not sufficient to establish entitlement to compensation benefits under 38 U.S.C.A. § 1151. Rather, it must be shown that the treatment causing the additional disability involved carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault or was not reasonably foreseeable. The overwhelming medical evidence of the Veteran's treatment over the course of many years establishes that his condition was one of steroid-dependent asthma/COPD. Whenever his dosage of steroid was decreased or discontinued, he soon presented to the hospital with bronchospasm and shortness of breath. In the opinion of the May 2013 VA examiner, the prescription of steroids was medically indicated for the treatment of the steroid-dependent asthmas/COPD, and such treatment was therefore not careless, negligent, indicative of lack of proper skill or error in judgment on the part of the treating physicians. In addition, the examiner noted that bone deterioration or osteoporosis is a known and common side effect of prescription steroids such as prednisone, and therefore the development of the condition was a reasonably foreseeable event. The Veteran has provided no evidence to the contrary, despite his insistence that he was not advised of the possible side-effects of the medication. However, the Board notes that the record shows prescriptions for calcium supplements and monitoring of his bones during treatment, indicative of his doctor's concern. This history supports the conclusion that bone deterioration was not unforeseen as a result of the ongoing steroid therapy for the Veteran's severe asthma. In light of the above, the Board must conclude that the Veteran's bone deterioration and resulting bilateral hip arthroplasties were not due to any unforeseeable consequence, carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in the treatment of his nonservice-connected steroid-dependent asthma/COPD. 38 U.S.C.A. § 1151. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. See 38 U.S.C.A. § 5107(b). As the preponderance of the evidence is against the Veteran's claim, however, that doctrine is not applicable. See Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001) and Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 for bilateral hip arthroplasty is denied. ____________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs