Citation Nr: 1335332 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-15 933 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to compensation under 38 U.S.C.A. § 1151 for additional cardiovascular disability. 2. Entitlement to compensation under 38 U.S.C.A. § 1151 for chronic residuals of Legionnaires' disease, to include claimed fatigue/generalized muscle weakness. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1946 to December 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied compensation under 38 U.S.C.A. § 1151 for coronary atherosclerosis and fatigue/generalized muscle weakness. The Veteran timely appealed that decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of Legionnaires' disease, to include claimed fatigue/generalized muscle weakness, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran does not have an additional cardiovascular disability which is the result of VA medical treatment at Brecksville VA Medical Center in July 2006. CONCLUSION OF LAW The criteria for establishing entitlement to compensation under 38 U.S.C.A. § 1151 for an additional cardiovascular disability have not been met. 38 U.S.C.A. §§ 1151, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.361 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). 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 April 2008 that provided information as to what evidence was required to substantiate the claim for compensation under 38 U.S.C.A. § 1151 for a cardiovascular disorder herein decided and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. 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 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. 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 herein decided. 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). Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In pertinent part, 38 U.S.C. § 1151 reads as follows: (a) Compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title 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-- (1) 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. Pursuant to 38 C.F.R. § 3.361, to determine whether additional disability exists within the meaning of section 1151, the Veteran's condition immediately prior to the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based is compared to his or her condition after such care, treatment, examination, services, or program has been completed. Each body part or system involved is considered separately. 38 C.F.R. § 3.361(b). Willful misconduct is defined as an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n)(1) (2013). Mere technical violations of police regulations or ordinances will not per se constitute willful misconduct, and willful misconduct will not be determinative unless it is the proximate cause of injury. 38 C.F.R. § 3.1(n)(2), (3). Again, after the additional disability element has been met, 38 U.S.C.A. § 1151 specifies two bases for entitlement. First, entitlement may be established on the basis of a showing of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA providers. Second, entitlement may be established on a showing of an event not reasonably foreseeable. To establish causation, the evidence must show that VA's hospital care, medical or surgical treatment, or examination resulted in additional disability or death. Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1). Such VA treatment cannot cause the continuance or natural progress of a disease or injury for which such care 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). 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). 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. 38 C.F.R. § 3.361(d). Proximate cause is that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the injury would not have occurred. Robinette v. Brown, 8 Vet. App. 69, 78 (1995). An "intervening cause" is one that comes between the initial force or cause and the injury. Black's Law Dictionary, 1225 (6th ed. 1990). In establishing causation, it must be shown that (i) that VA failed to exercise the degree of care that would be expected of a reasonable health care provider or (ii) that 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. 38 C.F.R. § 3.361(d)(1). When a Veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, compensated work therapy, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. On appeal, the Veteran has averred that he had a cardiovascular disorder prior to seeking treatment at VA in July 2006, but that his pre-existing cardiovascular disorder was aggravated due to his Legionnaires' disease. He stated that he contracted Legionnaires' disease as a result of using the pool and shower facilities at Brecksville VA Medical Center in July 2006 for hydrotherapy. In September and October 2006, the Veteran underwent two cardiac catherizations at VA. The Veteran has not claimed and the record does not show that these instances of VA treatment were sub-standard or caused additional disability. The Veteran has claimed additional disability to be an "aggravation" of his pre-existing cardiovascular condition due to contracting Legionnaires' disease in July 2006 from the Brecksville VA Medical Center pool/shower facilities. The Veteran had a history of heart disease prior to his treatment at the Brecksville VA Medical Center in July 2006; the Veteran has not alleged any specific additional cardiovascular disability that occurred as a direct result of his VA treatment at that time. VA obtained an August 2008 clinical summary and medical opinion, which in pertinent part states: [The Veteran] had an extensive history of coronary artery disease with ischemic cardiomyopathy, hypertension, who was hospitalized with bilateral pneumonia from August 2006 to September 2006. . . . He has had heart problems during the same time. He did defer[ treatment for his pneumonia] at that time so that his heart workup could be continued. He subsequently was however found to have a urinary antigen positive for Legionella and was placed on its treatment for 10 days after being discharged from the hospital. . . . He did eventually recover [from his Legionnaires' disease]. He however had significant problems with weight loss and lack of physical endurance because of his prolonged stay at the hospital. His heart condition was not triggered by the Legionnaires' disease. I do not think Legionnaires' disease aggravated his underlying heart disease. It, however, prolonged his duration of hospital stay and added a comorbidity to his already existing conditions. There is no showing that the Veteran had superimposed cardiovascular disease or that his pre-existing cardiovascular disease underwent a permanent increase in its severity as a result of hospital treatment or his Legionnaires' disease. In light of the August 2008 opinion, the Board must conclude that the Veteran does not have an additional cardiovascular disorder as a result of VA treatment. The Veteran is not competent to give a medical opinion as to whether his cardiovascular disease was aggravated by his Legionnaires' disease (i.e., whether his cardiovascular disease was permanently increased in severity beyond the normal progression of that disease by his Legionnaires' disease). See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). Instead, the Board relies on the August 2008 physician's opinion, which demonstrates that the Veteran's cardiovascular disease pre-existed his July 2006 treatment and was not aggravated by his Legionnaires' disease. There is no competent evidence of record which refutes this opinion. Thus, the Board must conclude at this time that there is no additional cardiovascular disability which is the result of VA treatment. The Board need not reach the question relating to VA's negligence, carelessness, lack of skill, error of judgment, or similar instance of fault in this case, nor must it address the unforeseeability prong, as there is no additional disability present. Accordingly, the Board must deny compensation under 38 U.S.C.A. § 1151 for additional cardiovascular disability as a result of VA treatment. See 38 U.S.C.A. § 1151; 38 C.F.R. §§ 3.102, 3.361. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Compensation under 38 U.S.C.A. § 1151 for additional cardiovascular disability is denied. REMAND With respect to the Legionnaires' disease claim, the Veteran has averred in his informal hearing presentation that a thorough assessment of the residual disabilities stemming from his contraction of Legionnaires' disease has not been provided by VA. The Board has reviewed the August 2008 VA clinical summary and agrees with the Veteran's assertion. Accordingly, the Board finds that a remand is necessary in order to afford the Veteran another VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Obtain any relevant VA treatment records from the Cleveland VA Medical Center, or any other VA medical facility that may have treated the Veteran, since September 2009 and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment that he may have had for his Legionnaires' disease or residuals thereof, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Schedule the Veteran for a VA examination with an infectious disease specialist or an internist in order to determine the current nature/residuals of Legionnaires' disease. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. Following review of the claims file, the examiner should address the following: (a) The examiner should opine as to whether there is a 50 percent or greater probability that the Veteran contracted Legionnaires' disease as a result of his usage of the Brecksville VA Medical Center's pool and shower facilities in July 2006 or it is otherwise related to VA medical care. (b) If so, then the examiner should opine as to whether such contraction of Legionnaires' disease was due to VA's negligence, carelessness, lack of proper skill, error in judgment or other similar instance of fault. (c) If (b) is answered in the negative, the examiner should additionally opine whether the Veteran's contraction of Legionnaire's disease was a reasonably foreseeable consequence of his usage of the Brecksville VA Medical Center's pool/shower facilities? (d) Finally, if and only if the examiner answers (a) and either (b) or (c) in the positive, the examiner should discuss whether the Veteran has an additional disability, to include residuals of Legionnaires' disease, such as disability exhibited by fatigue/generalized muscle weakness, as a result of any VA treatment at Brecksville VA Medical Center in July 2006, including usage of the pool for hydrotherapy and its shower facilities. If so, the examiner should identify any chronic residuals that occurred after the contraction of that disease, to include claimed fatigue/generalized muscle weakness. If disability has resolved, the examiner should specify the duration of the additional disability resulting from the VA medical care. The examiner should review the medical records in the claims file as well as obtain a detailed medical history from the Veteran in order to facilitate and identify any and all residual disabilities associated with Legionnaires' disease. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claim for compensation under 38 U.S.C.A. § 1151 for residuals of Legionnaires' disease. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs