Citation Nr: 1331466 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 07-26 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to compensation under 38 U.S.C.A. § 1151 for renal deficiency, claimed to have resulted from treatment at a Department of Veterans Affairs (VA) medical facility between 1991 and 2004. 2. Entitlement to compensation under 38 U.S.C.A. § 1151 for a neurological disability of the bilateral upper extremities, claimed to have resulted from treatment at a VA medical facility between 1991 and 2004. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from September 1981 to September 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In February 2007, the RO denied a claim for compensation under 38 U.S.C.A. § 1151 for renal deficiency. In October 2007, the RO denied a claim for compensation under 38 U.S.C.A. § 1151 for neuropathy of the bilateral upper extremities. The Veteran testified before the undersigned Acting Veterans Law Judge in March 2010. A transcript of the hearing is associated with the claims file. In a July 2010 decision, the Board remanded these issues for additional development. The issue of entitlement to compensation under 38 U.S.C.A. § 1151 for a cataract disability, claimed to have resulted from treatment at a VA medical facility has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's current renal deficiency disability was not caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, or by an event not reasonably foreseeable. 2. The Veteran's current neurological disability of the bilateral upper extremities was not caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, or by an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for compensation under 38 U.S.C.A. § 1151 for renal deficiency, claimed to have resulted from treatment at a VA medical facility between 1991 and 2004, have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. § 3.358 (2013). 2. The criteria for compensation under 38 U.S.C.A. § 1151 for a neurological disability of the bilateral upper extremities, claimed to have resulted from treatment at a VA medical facility between 1991 and 2004, have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. § 3.358 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and 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. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In this appeal, the RO provided notice to the Veteran in an October 2006 letter, prior to the date of the issuance of the appealed February 2007 rating decision and in a July 2007 letter, prior to the date of the issuance of the appealed October 2007 rating decision. The October 2006 and July 2007 letters explained what information and evidence was needed to substantiate a claim for compensation benefits pursuant to 38 U.S.C.A. § 1151, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The Veteran was not provided with notice regarding effective dates. The Board finds, however, that any error in providing notice was nonprejudical to the Veteran. The Board concludes below that the preponderance of the evidence is against the Veteran's claims, and thus any questions as to the effective date to be assigned are rendered moot. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent medical evidence associated with the claims file consists of service, VA treatment records and the reports of July 2007 and September 2010 VA examinations. Also of record and considered in connection with the appeal are the various written statements provided by the Veteran and by the Veteran's representative on her behalf as well as the Veteran's March 2010 hearing testimony. The Board finds that no additional RO action to further develop the record on the claim is warranted. The Board notes that in a June 2013 Written Brief Presentation, the Veteran's representative indicated that he did not agree with the July 2007 and September 2010 VA examiner's analyses of the issues. The representative specifically noted that the examinations were not as exhaustive as they needed to be to properly determine these issues. While the Board notes the Veteran's representative's contentions regarding the adequacy of the July 2007 and September 2010 VA examinations, the examiners indicated that they reviewed the Veteran's claims file prior to their opinion. The Veteran also gave an accurate history regarding the issues and recounted her relevant symptomatology at the examinations. After receiving this information, the examiners performed a thorough physical and conducted necessary diagnostic tests related to the Veteran's renal deficiency and neurological disability of the bilateral upper extremities which included fully addressing the criteria that is relevant when evaluating a claim for benefits pursuant to 38 U.S.C.A. § 1151. The examiners documented these actions in detail in their examination reports. As such, the Board finds that July 2007 and September 2010 VA examinations were adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (defining adequacy with respect to medical examinations and opinions as those providing sufficient detail so that the Board can perform a fully informed evaluation of the claim). Thus, there is adequate medical evidence of record to make a determination in this case. As such, the Board finds that additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. §§ 3.326, 3.327; Green v. Derwinski, 1 Vet. App. 121 (1991). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Laws and Regulations The appropriate legal standard for claims for compensation under 38 U.S.C.A. § 1151 filed on and after October 1, 1997, as in this case, provides that compensation shall be awarded for a qualifying additional disability or a qualifying death of a Veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the Veteran's willful misconduct and the disability or death 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 section 1701(3)(A) of this title, and the proximate cause of the disability or death 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 (West 2002). From the plain language of this statute, it is clear that, to establish entitlement to benefits under 38 U.S.C.A. § 1151, all three of the following factors must be shown: (1) disability/additional disability, (2) VA hospitalization, treatment, surgery, examination, or training was the cause of such disability, and (3) there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from an unforeseen event. Effective September 2, 2004, 38 C.F.R. § 3.361 relating to section 1151 claims was promulgated for claims filed on or after October 1, 1997, such as this claim. See 69 Fed. Reg. 46,426 (2004) (codified as amended at 38 C.F.R. § 3.361 (2011)). 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. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. Additional disability or death caused by a Veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(1). 38 C.F.R. § 3.361(d) states that the proximate cause of disability or death is the action or event that directly caused the disability or death, 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 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, medical or surgical treatment, or examination caused the Veteran's additional disability or death (as explained in paragraph (c) of this section); 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 the Veteran's or, in appropriate cases, the Veteran's representative's informed consent. Factual Background and Analysis The Veteran seeks benefits under 38 U.S.C.A. § 1151 for additional disability suffered as a result of treatment between 1991 and 2004. During this time, she was treated for a psychiatric disorder (i.e., bipolar disorder) with medications that included lithium; she was treated for hypertension with medications that included Lisinopril; and she was treated for other disorders with NSAIDS (nonsteroidal anti-inflammatory drugs). She asserts that this combination of medications caused her renal deficiency, and/or bilateral neurological disorders of the upper extremities. She has submitted a number of articles pertaining to the side effects of various medications in support of her claims. Overall, the medical evidence includes a large number of VA progress notes which show that the Veteran has received ongoing treatment for psychiatric symptoms since 1991 (with most diagnoses noting bipolar disorder), as well as disorders that include multiple joint pain, hypertension, and hypothyroidism. She has been prescribed a wide variety of medications, to include lithium, Naproxen, Motrin, Tramadol, and Lisinopril. This evidence contains a number of notations associating (with varying degrees of certainty) tremors in the upper extremities, and neuropathy, with use of lithium, NSAIDS, and/or hypertension. There are also notations of carpal tunnel syndrome, essential tremors, peripheral neuropathy, and sensory neuropathy, with some indications that the Veteran's neurological symptoms may be associated with degenerative joint disease of the cervical spine. Service connection is not currently in effect for any disabilities. The Veteran underwent a VA examination in July 2007. The examiner noted that the Veteran had a claim under 38 U.S.C.A. § 1151 for renal deficiency, claimed to have resulted from lithium toxicity as well as a combination of other drugs given, to include her medication for hypertension and Motrin. She also noted the Veteran's assertion that the disability was caused by improper care by a VA health care provider. The examiner noted that lithium was initially prescribed by in 1991 at Northwest Texas Hospital, that a VA treatment record in June 1994 showed that the lithium was continued, that renal failure was suspected in 2001 due to lithium, and that a January 2002 report noted that renal insufficiency was possibly related to the use of nonsteroidals and chronic lithium use. The examiner noted Veteran's report that she was first diagnosed with renal insufficiency in 2002. She reported that at the time of the diagnosis she was having vomiting problems. She indicated that she continued to follow up with mental health due to problems with her medication regimen. The examiner noted that Lithium was stopped in 2003, and indicated that the Veteran had expressed a desire to remain on that drug until she could accrue more sick leave. She reported that she was now taking Depakote. The examiner noted that the Veteran had been diagnosed with hypertension in the early 1980's and reported that she had been taking her prescribed medications faithfully. The Veteran also reported taking NSAIDS in the 1990's for back pain. The examiner noted a current diagnosis of renal insufficiency. She noted that the pertinent evidence demonstrated treatment documentation with lithium and ibuprofen that had serial monitoring of renal functioning. The examiner stated that in these notes, the side effects were discussed and the stopping of medication was discussed but the Veteran wanted to continue lithium due to different reasons. The examiner also noted that the Veteran had increased her own dose on her own on several occasions and that ibuprofen was prescribed minimally since 1998. The examiner pointed out that the Veteran also had a long history of hypertension (at times poorly controlled) that could have also adversely affected her kidney function. The examiner opined that renal insufficiency was less likely as not caused by or the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of the VA in furnishing her care and treatment by prescribing drugs which resulted in renal damage. She noted that she consulted with a supervising physician and that there was no evidence that the VA providers were careless, negligent, lacked proper skill or showed an error in judgment. She pointed out that the VA providers fully informed the Veteran of the potential side effects of the medication, encouraged stoppage of the medication and offered alternatives to treatment on several occasions. Per the July 2010 remand instructions, the Veteran underwent a VA examination in September 2010. The diagnosis was peripheral neuropathy of the bilateral upper extremities and essential tremors. Regarding the tremors, the examiner noted that the treatment documentation related this claimed condition to medications taken for the Veteran's bipolar disorder. Notably, she pointed out that a March 2007 treatment note reported that the Veteran's tremors were most likely secondary to drug related issues. She also noted that a June 2006 neurology treatment report indicated tremors which were most likely related to the use of medications for bipolar disorder. A June 2006 note from the Veteran's physician indicated that she had tremors but the physician was unsure if this was related to a history of lithium use or whether this was a familial tremor. The examiner noted that it was at least as likely as not that the Veteran's tremors were caused by her treatment from 1991 to 2004 (lithium) as a less serious but common side effect of lithium may include mild tremor of the hands. The examiner also opined that the Veteran's tremors in her hands were less likely than not caused by or a result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the VA's part in furnishing treatment or an event not reasonably foreseeable. The examiner noted that tremors are a well known and common side effect of lithium and/or Depakote use. There was also documentation showing that the side effects of medications were discussed at most of the Veteran's visits and the toxicities of the medications were monitored appropriately. Regarding the Veteran's peripheral neuropathy, the examiner noted that he reviewed the Veteran's history of the claimed condition as well as multiple internet documents that concerned the medications side effects. The examiner opined that it was less likely than not that the Veteran's peripheral neuropathy was caused by the Veteran's treatment or non-treatment at the VA from 1991 to 2004. The examiner noted that peripheral neuropathy was not a known side effect of lithium, Depakote or lisinopril nor was the cause of the Veteran's peripheral neuropathy known. Based upon the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to compensation under 38 U.S.C.A. § 1151 for renal insufficiency and a neurological disability of the bilateral upper extremities, claimed to have resulted from treatment at a VA medical facility between 1991 and 2004. The Board finds that the most probative evidence does not indicate that the Veteran's current renal insufficiency and a neurological disability of the bilateral upper extremities were the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing treatment or an event not reasonably foreseeable. Regarding the Veteran's renal insufficiency and neurological disabilities, the Board notes that the Veteran has current renal insufficiency and tremors that have been related to the Veteran's intake of her prescribed medications to include lithium. However, as noted above, under 38 U.S.C.A. § 1151, all three of the factors must be shown to prevail on a claim. In this instance, the third factor under 38 U.S.C.A. § 1151 is not shown, as the only competent medical evidence has determined that the Veteran's current renal insufficiency and tremors are not the result of VA error or negligence. Specifically, the July 2007 VA examiner noted that VA providers fully informed the Veteran of the potential side effects of her medication, encouraged discontinuation of the medication, and offered alternatives to treatment on several occasions. Similarly, the September 2010 VA examiner noted that tremors are a well known and common side effect of lithium and/or Depakote use and there was also documentation showing that the side effects of medications were discussed at most of the Veteran's visits and the toxicities of the medications were monitored appropriately. Because there is no competent evidence that VA otherwise exhibited carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault, compensation under 38 U.S.C.A. §1151 must be denied. Regarding the Veteran's peripheral neuropathy, while the Veteran has a current disability, there is no evidence that her VA treatment was the cause of such disability and there is no demonstration that there was an element of fault on the part of VA in providing the treatment or that the disability resulted from an unforeseen event. As noted above, the September 2010 VA examiner specifically determined that it was less likely than not that the Veteran's peripheral neuropathy was caused by the Veteran's treatment or non-treatment at the VA from 1991 to 2004 as peripheral neuropathy was not a known side effect of lithium, Depakote or lisinopril and the cause of the Veteran's peripheral neuropathy was unknown. Because there is no competent evidence suggesting a causal relationship between VA treatment and the Veteran's current peripheral neuropathy, the Board concludes that the Veteran does not have an additional disability that was caused or aggravated by the VA's treatment. Similarly, there is no competent evidence that VA otherwise exhibited carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault. In the absence of any such competent evidence, compensation under 38 U.S.C.A. §1151 must be denied. The Board finds the VA examination reports to be highly probative, as they were based on a thorough review of the Veteran's medical records, evaluation of the Veteran, and cite to relevant medical principles. The opinions are also consistent with the other evidence of record and are supported by a detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.). The Board notes that the Veteran has submitted multiple internet articles regarding the consequences of certain prescribed medications such as lithium and Depakote which result in disabilities such as renal dysfunction when combined with other medications. However, the Board also notes that the July 2007 VA examiner clearly took into account the Veteran's other medications aside from lithium and Depakote as he determined that the Veteran's renal insufficiency was not caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, or by an event not reasonably foreseeable. Regarding the Veteran's peripheral neuropathy and tremors disability, the September 2010 VA examiner explicitly noted he had reviewed the Veteran's history of the claimed condition as well as multiple internet documents that concerned the medications side effects when determining that peripheral neuropathy was not a known side effect of lithium, Depakote or lisinopril nor was the cause of the Veteran's peripheral neuropathy known. Additionally, the Board notes that while the internet articles discuss the various risks of medications in general terms, unlike the July 2007 and September 2010 VA examinations, the articles do not provide any information regarding the specific fact pattern of the Veteran's case. Indeed, there is no medical evidence of record showing that the Veteran's current renal insufficiency and neurological disability of the bilateral upper extremities were caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, or by an event not reasonably foreseeable. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Duenas v. Principi, 18 Vet. App. 512, 520 (2004). Lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, in this case, assertions as to whether the Veteran's renal insufficiency and peripheral neuropathy of the bilateral upper extremities were caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, or by an event not reasonably foreseeable, are etiological questions unlike testimony as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308 -09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet). There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a complex medical opinion regarding the etiology of her disabilities. See 38 C.F.R. § 3.159 (a)(1) (2012) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what she observed and of the symptoms she experienced, she is not competent to ascertain the relationship between her treatment at VA and her current renal insufficiency and peripheral neuropathy of the bilateral upper extremities disabilities, as the factors involved are not readily subject to lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). In this circumstance, the Board gives more weight and credence to the opinions of the VA examiners which were rendered by licensed medical professionals rather than a lay person and were based on medical principles, which were set forth in the reports. The Board is sympathetic to the Veteran's sincere belief that careless, negligence, lack of proper skill, error in judgment, or similar instance of fault is responsible for her current renal insufficiency and peripheral neuropathy of the bilateral upper extremities disabilities. The Board finds, however, that the weight of the probative and competent evidence is against a finding that the Veteran has an additional disability that was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing treatment, or that it was an event not reasonably foreseeable. Because the preponderance of the competent evidence is against the claims, entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151 for renal insufficiency and a neurological disability of the bilateral upper extremities must be denied. ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 for renal deficiency, claimed to have resulted from treatment at a VA medical facility between 1991 and 2004 is denied. Entitlement to compensation under 38 U.S.C.A. § 1151 for a neurological disability of the bilateral upper extremities, claimed to have resulted from treatment at a VA medical facility between 1991 and 2004 is denied. ____________________________________________ J. K. BARONE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs