Citation Nr: 1332852 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-27 955 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for paraplegia below the waist for accrued benefits purposes. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Veteran and Appellant ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran who served on active duty from September 1965 to September 1967. The Veteran died in September 2010 and the appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia (RO). The Veteran and the appellant testified at a hearing before the undersigned in February 2010 and the transcript is of record. Prior to his death, the Veteran perfected an appeal to the Board seeking benefits pursuant to 38 U.S.C.A. § 1151 claiming his paraplegia below the waist was due to the negligence and carelessness of VA medical treatment at the VAMC in April 2006. As a matter of law, appellants do not survive their claims. The Veteran's widow, however, subsequently and timely requested to be substituted as the appellant for purposes of processing the claim to completion in October 2010. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C. § 5121A, substitution in case of death of a claimant who dies on or after October 10, 2008). As provided for in this new provision, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title ...." The RO found the appellant in this case is a properly substituted claimant. Therefore, the Veteran's surviving spouse has been substituted for the Veteran. The appellant retains the Veteran's docket number before the Board. This case was remanded by the Board in September 2010, August 2012, and June 2013 for further evidentiary development. 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). FINDING OF FACT The medical evidence of record shows that the Veteran's paraplegia below the waist resulting from or proximately related to his diagnosed arterio-venous fistula was due to an event not reasonably foreseeable in furnishing the Veteran's VA medical treatment. CONCLUSION OF LAW The criteria for entitlement compensation benefits under the provisions of 38 U.S.C.A. § 1151 for paraplegia below the waist for accrued benefits purposes have been met. 38 U.S.C.A. §§ 1151, 5103A, 5107 (West 2002 & Supp 2013); 38 C.F.R. §§ 3.159, 3.361 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal herein. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). This is so because the Board is taking action favorable to the appellant by granting the claim of entitlement compensation benefits under the provisions of 38 U.S.C.A. § 1151 for paraplegia below the waist for accrued benefits purposes at hand. As such, this decision poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Under VA laws and regulations, when a veteran suffers additional disability or death as a result of training, hospital care, 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 was service-connected. 38 U.S.C.A. § 1151; 38 C.F.R. §§ 3.358, 3.361. For claims filed after October 1, 1997, a claimant is required to show fault or negligence in medical treatment. For claims filed prior to October 1, 1997, a claimant is not required to show fault or negligence in medical treatment. See Brown v. Gardner, 115 S. Ct. 552 (1994) (language of statute was plain and did not require showing of fault). Since the Veteran filed his claim after that date, he must show some degree of fault, and more specifically, that the proximate cause of his disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing medical care or was an event not reasonably foreseeable. 38 U.S.C.A. § 1151(a)(1); 38 C.F.R. § 3.361. In determining that additional disability exists, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. Merely showing that a Veteran received care, treatment, or examination and that that the Veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1). 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 diagnoses and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). 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)(3). Entitlement to disability benefits are warranted where there is evidence of an additional disability proximately caused by VA hospital care, medical or surgical treatment, or examination, and the proximate cause of the additional disability was either: (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (2) an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002). The proximate cause of an additional disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d) (2013). 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 VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or, that VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's informed consent. To determine whether there was informed consent, VA will consider 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. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b), as in emergency situations. 38 C.F.R. § 3.361(d)(1). The second prong of proximate causation requires that the veteran's additional disability or death be an event that was not reasonably foreseeable. This fact is 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. 38 C.F.R. § 3.361(d)(2); see also Schertz v. Shinseki, No. 11-2694 (Vet. App. Sep. 26, 2013). Prior to his death, the Veteran was diagnosed with a rare condition called arterio-venous fistula, resulting in paraplegia below the waist. Medical evidence of record indicates arterio-venous fistula is an uncommon condition and very difficult to diagnose. The Veteran received VA treatment on April 18, 2006, May 4, 2006, and May 5, 2006, for complaints of neck pain. The appellant has asserted that VA ultimately caused the Veteran's paraplegia by failing to take his complaints seriously and not complete enough diagnostic tests, thereby delaying the diagnosis of arterio-venous fistula. She contended that had VA caught the condition earlier, the Veteran would not have become paralyzed. During his lifetime, the Veteran more specifically claimed more diagnostic tests should have been completed on April 18, 2006, when he was seen for neck pain. He further contended the VA emergency room physician who saw him on April 18, 2006, did not speak English very well and barely listened to his complaints. He believed the delayed diagnosis caused his condition to worsen to the point of paraplegia. Thereafter, starting in May 2006, the Veteran sought private treatment from multiple providers, including Lewis Gale Medical Center and University of Virginia, for his claimed disorder. VA obtained a medical opinion in November 2010 from a VA neurologist who opined that the arterio-venous fistula is a very uncommon condition and is very difficult to diagnose even for specialists in neurological care. While the examiner did not find VA acted careless or in other similar fault, the examiner did find the inherent difficulty in diagnosing this rare condition likely resulted in the Veteran's paraplegia and other disabilities. The Board has found the November 2010 VA medical opinion to be ambiguous as to whether VA medical treatment caused an additional disability due to an event not reasonably foreseeable. On the one hand, the VA neurologist indicated the Veteran's paraplegia "is not likely due to carelessness, negligence, lack of proper skill, or error in judgment on the part of VA." On the other hand, however, the VA neurologist also noted that the condition was rare, and difficult to diagnose, highlighting that the inherent difficulty of diagnosing the disorder likely caused the paraplegia. The November 2010 VA neurologist opinion merely stated, "Veteran's condition is likely due to an event not reasonably foreseeable" and "the inherent difficulty in diagnosing this rare condition...likely resulted in patient's paraplegia and other disabilities." The Board notes that the VA neurologist did not entirely make clear whether VA proximately caused the Veteran's arterio-venous, paraplegia, or some other additional disability due to an event not reasonably foreseeable. An addendum clarification opinion from the VA neurologist who completed the November 2010 VA medical opinion was obtained. The VA neurologist was asked to clarify whether the Veteran's arterio-venous fistula, resulting paraplegia, or any other additional disability was proximately caused by an event not reasonably foreseeable. In an August 2013 VA addendum opinion, the VA neurologist noted his additional review of the claims file and Virtual VA records. The neurologist noted that pertinent medical records for his review included a VA emergency room visit dated April 18, 2004, an Axton VA Community Based Outpatient Clinic (CBOC) visit dated May 4, 2006, a telephone contact note at Axton CBOC dated May 5, 2006, and a private neurologist note from Lewis Gale Hospital dated May 10, 2006. When asked whether the Veteran had additional or aggravated disabilities proximately caused by VA treatment on April 18, 2006, May 4, 2006, or May 5, 2006, for complaints of neck pain, the VA neurologist answered "yes". It was noted that the Veteran's paraplegia was proximately related to the diagnosis of arterio-venous fistula, which initially presented as neck pain. The VA neurologist indicated that arterio-venous fistula can present with various initial neurological symptoms of which spinal spine is one. It was further indicated that arterio-venous fistulas cause damage to the brain or spinal cord based on their location. When asked whether the proximate cause of each additional or aggravated disability was due to an event not reasonably foreseeable, the VA neurologist opined that the proximate cause (arterio-venous fistula) was due to an event not reasonable foreseeable. It was indicated that symptoms and examination findings documented in VA treatment records from April 18, 2006, May 4, 2006, and May 5, 2006, did not raise suspiscion for the diagnosis of arterio-venous fistula. The VA neurologist noted that the Veteran had localized neck pain initially without evidence for the involvement of either spinal cord or spinal nerve roots. Based on the documented clinical information, the VA neurologist opined that a reasonable health care provider would not have considered the diagnosis of arterio-venous fistula or ordered additional tests than the ones performed. In view of the totality of the evidence, including the ambiguous but favorable nature of the initial November 2010 VA medical opinion from the VA neurologist as well as the favorable nature of August 2013 VA clarification addendum medical opinion from the same VA neurologist, the Board finds that the Veteran suffered from an additional disability, arterio-venous fistula with resulting paraplegia, after VA treatment that was proximately caused by an event not reasonably foreseeable. Based on the foregoing and resolving all doubt in the appellant's favor, the Board finds that entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for paraplegia below the waist for accrued benefits purposes is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for paraplegia below the waist for accrued benefits purposes is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs