Citation Nr: 1326655 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 12-05 683 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a cognitive disorder, claimed as brain damage. 2. Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a right upper arm and shoulder disorder. 3. Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for anemia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL The Appellant (the Veteran), S.I. (his wife), and D.C. (a friend) ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from January to February 1972. He appealed to the Board of Veterans' Appeals (Board/BVA) from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). He and others testified at a hearing at the RO in December 2011 before a local hearing officer. They also testified at an additional hearing at the RO in June 2013, but this time before the undersigned Veterans Law Judge (VLJ) of the Board. Transcripts of the hearings are of record. During the hearing the Veteran indicated his iron deficiency (i.e., anemia) had cleared up, so resolved. He therefore clarified that he was no longer interested in appealing for § 1151 compensation concerning it, so the Board is dismissing his appeal for this condition. See 38 C.F.R. § 20.204 (2012). However, the Board is granting his remaining claims. He recently submitted additional evidence in support of these remaining claims, and he waived his right to have the RO initially consider this additional evidence as the Agency of Original Jurisdiction (AOJ), preferring instead to have the Board do so in the first instance. See 38 C.F.R. § 20.1304(c) (2012). A still additional claim of entitlement to service connection for a left shoulder disorder as secondary to the right shoulder disorder already at issue has been raised by the record, specifically, in his June 2013 hearing testimony. But this claim has not been initially adjudicated by the RO as the AOJ. Therefore, the Board does not have jurisdiction over this additional claim so is referring it to the RO for appropriate development and consideration. Please also note the Board has advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. During his June 2013 hearing before the Board, so prior to promulgation of a decision in this appeal, the Veteran indicated he is withdrawing his claim for § 1151 compensation for anemia. 2. But as concerning his remaining claims, in February 2009, during treatment of a gastrointestinal bleed following a colonoscopy, he experienced a syncopal episode as a result of an error in judgment by VA nursing staff, and the resultant inadequate blood flow to his brain caused microvascular disease of his brain and a cognitive disorder, as well as a fall and injury to the acromioclavicular (AC) joint of his right shoulder with consequent degenerative changes of this shoulder. CONCLUSIONS OF LAW 1. The criteria are met for withdrawal of the substantive appeal concerning the claim of entitlement to § 1151 compensation for anemia. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. But the criteria are met for § 1151 compensation for a cognitive disorder due to microvascular disease of the brain. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). 3. The criteria also are met for § 1151 compensation for degenerative changes of the AC joint of the right shoulder. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Claim Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal (VA Form 9 or equivalent) may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal also may be by the appellant on the record at a hearing. 38 C.F.R. § 20.204. Here, prior to the promulgation of a decision in this appeal, the Veteran indicated on the record during his June 2013 hearing before the Board (Travel Board hearing) that he is withdrawing his claim of entitlement to § 1151 compensation for anemia. Therefore, there remain no allegations of errors of fact or law for appellate consideration as concerning this claim. Accordingly, the Board does not have jurisdiction to review the appeal of this claim, and it is dismissed. Veterans Claims Assistance Act of 2000 As for the remaining claims on appeal, the Veterans Claims Assistance Act of 2000 (VCAA) outlines procedural notification and assistance VA must provide to claimants in certain cases. If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this particular case at hand, however, the Board is fully granting the remaining claims, so there is no need to discuss whether there has been compliance with the VCAA's duty-to-notify-and-assist obligations because the Veteran is receiving the requested benefits, regardless, so even if assuming, for the sake of argument, there has not been compliance. § 1151 Compensation Under 38 U.S.C.A. § 1151, compensation shall be awarded for a qualifying additional disability or death of a Veteran in the same manner as if the additional disability or death were service connected. Such is considered a qualifying additional disability or death under the law if it is not the result of the Veteran's willful misconduct and the disability or death was caused by VA hospital care, medical or surgical treatment, or examination, and the proximate cause of the additional disability or death was: 1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or 2) an event not reasonably foreseeable. Id. In determining whether additional disability exists, VA compares the Veteran's physical condition immediately prior to the hospital care or medical treatment upon which the claim for benefits is based with the physical condition after such care or treatment. 38 C.F.R. § 3.361(b). To establish causation, evidence must show that the VA medical treatment resulted in a Veteran's additional disability. Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Medical treatment cannot cause the continuance or natural progress of a disease or injury for which the 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). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). In addition to causation, it must also be shown that (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) that VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, his or her representative's informed consent. 38 C.F.R. § 3.361(d)(1); see also VAOPGCPREC 5-01. 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). 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). VA treatment records show the Veteran had a colonoscopy on February 5, 2009, which included the removal of 2 polyps. On February 13, he went to the emergency room (ER) after several episodes of hematochezia. He was diagnosed with a gastrointestinal bleed and orthostatic hypotension. During the course of his evaluation and treatment, he had two syncopal episodes. One episode occurred while he was being taken to the bathroom and resulted in a fall. A. Cognitive Disorder Subsequent VA treatment records show complaints of difficulty concentrating, an inability to complete small tasks, and other cognitive complaints. An August 2009 magnetic resonance imaging (MRI) of the brain revealed microvascular disease. The cognitive disorder was not noted to be present prior to the Veteran's period of treatment. This fact was specifically noted in a July 2013 opinion from one of his treating VA physicians. Therefore, the additional disability criterion has been met. With respect to causation, additional records dated in May 2010 and March 2013 noted that his cognitive symptoms were due to microvascular disease of the brain. The March 2013 records specifically noted this disease was from the prior gastrointestinal bleed. Records from August 2009 also noted new cognitive symptoms following a gastrointestinal bleed. The gastrointestinal bleed was a direct result of the colonoscopy and polypectomy the Veteran underwent in February 2009. The July 2013 opinion stated that he had experienced an episode of syncope during his gastrointestinal bleed which in turn had resulted in inadequate blood flow to his brain and therefore small blood vessel damage. Notably, an August 2010 VA opinion stated that the microangiopathic changes noted in his brain were the result of vascular disease, and not directly or indirectly caused by blood loss. So, after considering the evidence, the Board finds that the July 2013 opinion, when viewed collectively with the Veteran's treatment records, outweighs the August 2010 VA opinion. Therefore, the evidence establishes the Veteran's cognitive disorder was caused by his colonoscopy, subsequent gastrointestinal bleed, and resulting episode of syncope. The causation element has been met. Finally, with respect to whether VA failed to exercise a reasonable degree of care, the July 2013 opinion concluded there was poor judgment on the part of the nursing staff when the Veteran was permitted to stand up and walk across a room without assistance. The loss of consciousness he experienced at that point should have been anticipated as he had had a similar loss of consciousness while sitting (let alone standing) in the emergency department. As already conceded, this trauma in turn led to the inadequate blood flow to his brain and consequent microvascular disease. While the August 2010 VA examination opinion noted that a gastrointestinal bleed was a foreseeable consequence of the colonoscopy, it did not address the Veteran's subsequent episodes of syncope. Therefore, the evidence establishes that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. As all the elements of 38 U.S.C.A. § 1151 have been met, compensation for the cognitive disorder is warranted. B. Right Upper Arm and Shoulder The Veteran and other lay witnesses have testified that he injured his right shoulder during the February 2009 fall while in the ER. Subsequent VA treatment records show complaints of right shoulder pain dating back to the fall. An August 2009 MRI revealed degenerative changes of the right AC joint. The subjective complaints and objective degenerative changes were not shown to be present prior to his period of VA treatment. Therefore, he has met the additional disability criterion. With respect to causation, as noted above, his fall resulted from a syncopal episode following a gastrointestinal bleed. He, other lay witnesses, and statements contained within his treatment records clearly document continuous right shoulder pain and symptomatology following the February 2009 fall. He and the others are competent to report their observations and experiences, and the Board finds their statements and testimony also credible - so ultimately probative - as they are generally consistent with each other and the documented medical evidence. Indeed, his wife reportedly is a former nurse. The July 2013 opinion from his VA physician specifically noted that a right shoulder injury was incurred as a result of the fall. Conversely, the August 2010 VA examiner's opinion stated that the degenerative changes noted in the right shoulder were the result of repetitive use rather than acute injury. But after considering the evidence, on the whole, the Board finds that the July 2013 opinion, when viewed collectively with the Veteran's treatment records and lay statements, outweighs the August 2010 VA opinion. Therefore, the evidence establishes the Veteran's right shoulder disability was caused by his colonoscopy, subsequent gastrointestinal bleed, syncope, and fall injury. The causation element therefore has been met. Finally, with respect to whether VA failed to exercise a reasonable degree of care, the July 2013 opinion concluded there was poor judgment on the part of the nursing staff when the Veteran was permitted to stand up and walk across a room without assistance. The loss of consciousness he experienced at that point should have been anticipated as he had had a similar loss of consciousness while sitting (let alone standing) in the emergency department. This in turn led to the fall that resulted in his right shoulder injury. Therefore, the evidence establishes that VA failed to exercise the degree of care that would be expected of a reasonable health care provider in this circumstance. As all the elements of 38 U.S.C.A. § 1151 have been met, compensation for degenerative changes of the right AC joint is appropriate. ORDER The appeal for § 1151 compensation for anemia is dismissed. However, the claim of entitlement to § 1151 compensation for a cognitive disorder due to microvascular disease of the brain is granted, subject to the statutes and regulations governing the payment of VA compensation. Also granted is entitlement to § 1151 compensation for degenerative changes of the right AC joint, also subject to the statutes and regulations governing the payment of VA compensation. (The Veteran indicated during his June 2013 hearing before the Board that he already is receiving partial compensation for at least some of the disabilities at issue under the Federal Tort Claims Act, referring to his right shoulder injury but not cognitive disorder, so this additional award of § 1151 compensation is subject to concessions made in the settlement of that other claim.) ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs