Citation Nr: 1336118 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 06-11 588 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to compensation pursuant to 38 U.S.C. § 1151 for a central nervous system disorder, to include the residuals of encephalomyelitis, claimed to be as a result of improper treatment or the lack of properly diagnosing the underlying disability by VA Medical Center (VAMC) personnel. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from September 1974 to September 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2003 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), located in Houston, Texas. In May 2010, the Veteran's representative provided argument at a personal hearing over which the undersigned Acting Veterans Law Judge presided while at the RO. A transcript of that hearing has been associated with his claims file. In May 2011, the Board referred the matter to the Veterans Health Administration (VHA) for an advisory opinion concerning the Veteran's claim. The advisory opinion has been obtained and has been included in the claims file for review. In October 2011, Board remanded the claim because the Veteran submitted new evidence and did not waive RO review of that evidence. See 38 C.F.R. § 20.1304 (2013). The RO has reviewed that evidence in the first instance, and the claim has returned to the Board for adjudication. FINDING OF FACT The Veteran has additional disabilities, including varying degrees of quadriplegia, bilateral pyramidal tract involvement with severe gait ataxia, and atrophic neuromuscular weakness, because VA providers did not exercise the degree of care that would be expected of a reasonable health care provider when VA providers misdiagnosed his condition. CONCLUSION OF LAW The criteria for entitlement to VA compensation under 38 U.S.C. § 1151 for residuals of encephalomyelitis have been met. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.358, 3.361, 17.32 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Under 38 U.S.C.A. § 1151, compensation shall be awarded for a qualifying additional disability of a Veteran if it was not the result of the Veteran's willful misconduct and either the disability was proximately caused by the provision of training and rehabilitation service by the Secretary as part of an approved rehabilitation program or 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 section 1701(3)(A) of this title ("VA treatment"), 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 VA in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. To determine whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the VA treatment upon which the claim is based to the Veteran's condition after such care or treatment has stopped. VA considers each body part involved or system separately. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that VA treatment resulted in the Veteran's additional disability. Merely showing that a Veteran received VA treatment and that the Veteran has an additional disability does not establish causation. 38 C.F.R. § 3.361(c)(1). VA treatment cannot cause the continuance or natural progress of a disease or injury for which 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). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing treatment proximately caused a Veteran's additional disability, the Veteran must show that VA treatment caused the Veteran's additional disability, and VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or VA furnished the treatment without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent. 38 C.F.R. § 3.361(d)(1)(ii). Consent may be express (given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b). Id. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In this case, the Veteran avers that VA did not exercise the degree of care expected of a reasonable health care provider, to include misdiagnosis and mistreatment of his central nervous system disorder. During the May 2010 Board hearing, the Veteran's representative argued that the Veteran's condition was misdiagnosed, an allegation supported by findings by Dr. R.C.C., Dr. J.C.B.I., and Dr. N.C.R., the VA Chief of Neurology at a VAMC. The evidence shows that in the 1990s, the Veteran was treated at private medical care facilities and at VA facilities for symptoms of a demyelinating disease thought to have been multiple sclerosis. Treatment records show that after the initial diagnosis of multiple sclerosis in 1993, his physical condition deteriorated. The first indication of a diagnosis other than multiple sclerosis is noted in a March 1995 VA treatment record, which indicates infectious myeloencephalitis; however, another VA treatment record, also dated in 1995, states that the impression was multiple sclerosis, and that no sign of encephalitis was clinically shown. In February 1999, a VA provider indicated that the Veteran had a diagnosis of multiple sclerosis but that the symptoms appeared to be "some sort of chronic infectious process." The VA provider spoke with Dr. N.C.R., the Chief of Neurology, and an outside provider, and all agreed that the Veteran did not have multiple sclerosis. In March 1999, the Veteran was treated at Infectious Disease Specialists of SW. The diagnosis was encephalitis. In August 1999, the Veteran provided medical records and blood tests dating back to 1992 to Dr. R.C.C., a physician in the Republic of Columbia, for review. After reviewing the records, Dr. R.C.C. found that the Veteran presented with an infectious process that had not been treated for seven years. Based on the Veteran's deterioration in health, his slight improvement with use of oral antibiotics, and indications in the blood tests, Dr. R.C.C. immediately started intravenous antibiotics. Dr. R.C.C. reviewed an October 1993 magnetic resonance imaging (MRI) study and noted findings suggestive of cerebral abscess. Based on findings in his medical records from that period, Dr. R.C.C. found that the Veteran had a definite disorder of the blood as well as progressive neurological deterioration, which led to the Veteran having to use a wheelchair for three and a half years, admissions to the hospital, and a stay in a nursing home. Dr. R.C.C. indicated that the process was most likely of bacterial origin and had onset after an inadequate dental procedure in 1992. Dr. R.C.C. also stated that review of the medical history revealed that in the past two years, the Veteran had had infections of the central nervous system that had not been treated. Once Dr. R.C.C. ordered treatment, the Veteran's condition markedly improved. The final diagnosis was mesmyelinizant illness of the central nervous system compatible with encephalomyelitis, most likely bacterial in origin. Treatment records dated September 2003 and November 2011 from Dr. J.C.B.I. continue to show a diagnosis of sequalae of encephalomyelitis, most likely of infectious bacterial origin. In support of his claim, the Veteran submitted a letter from Dr. N.C.R., Chief of Neurology at a VAMC, dated July 2000. Dr. N.C.R. indicated that the Veteran received definitive care and treatment for encephalomyelitis in South America and that treatment involved "long-term intravenous antibiotics for a severe neuromuscular syndrome which, during its prolonged course, result[ed] in varying degrees of quadriplegia, bilateral pyramidal tract involvement with severe gait ataxia and atrophic neuromuscular weakness." It was noted that while the Veteran had been hospitalized at VA Medical Centers during the preceding five years for multiple sclerosis, an alternative diagnosis was not considered until 1998 when the Veteran was given an empiric trial of antibiotics. He observed that the Veteran had been hospitalized for a year in VA Medical Centers and two years with a private provider, and that the underlying occult infection remained uncontrolled and unchecked. He said the Veteran "did not benefit from a definitive diagnostic workup or treatment in any US facility." Dr. N.C.R. opined that, in retrospect, "it certainly appears that a definitive workup and diagnosis could have been accomplished within the VAMC" or the private provider "with the input of appropriate experts." Also of record is a February 2006 opinion from a VA neurologist. The neurologist reviewed the claims files, summarized the Veteran's medical history, and answered several questions posed by the RO. In the summary opinion, the neurologist stated that the Veteran was treated at VA and non-VA facilities and was evaluated numerous times for his central nervous system disease, but that none of the facilities defined an alternative diagnosis to the working diagnosis of multiple sclerosis. Despite finding that no other diagnoses were defined, it was indicated that treatment records show differences of opinion among the Veteran's treating physicians as to his diagnosis. Further, the 1999 diagnosis of encephalomyelitis appeared to have been ignored. In April 2011, the Board obtained a VHA opinion from an expert neurologist. After reviewing the claims file, the neurologist opined that the diagnosis of cerebral abscess was not overlooked by VA providers, and that while cerebral abscess is within the differential diagnosis of ring-enhancing lesions, the entirety of the Veteran's MRI was more consistent with multiple sclerosis. It was observed that VA providers had performed multiple evaluations, and that the results were inconsistent with an acute or sub-acute bacterial process. The neurologist found the findings were more consistent with multiple sclerosis, a conclusion supported by a neurology consult in 1999 with the Mayo Clinic. While the Veteran's condition improved while taking antibiotics, the expert neurologist opined that apparent clinical response to treatment cannot be taken as compelling evidence of misdiagnosis of a central nervous system infection. It was further opined that the care provided by VA providers was thorough and consistent with the best medical practice. The neurologist found no evidence of negligence, lack of knowledge, or judgment errors. In May 2011, the Board obtained a VHA opinion from an infectious disease expert. The expert opined that it was highly unlikely that a treatable, sub-acute infectious process of the central nervous system was overlooked by VA providers. It was found that the test results and the opinions of all specialists point to a noninfectious cause, most likely a demyelinating process such as multiple sclerosis. Regarding the antibiotics administered to the Veteran in South America, he stated that no etiologic agent of the infection had been identified, and that the Veteran's improvement could have been due to anti-inflammatory or placebo effects. The expert, however, did not address encephalomyelitis. Regarding VA treatment, the expert did not find "evidence suggestive of careless, negligent, medical personnel lacking proper skill, an error in judgment, and/or faulty in treating and caring for the patient." Finally, the expert stated that the Veteran's disability and symptoms were arising from multiple sclerosis rather than from an infectious process. The Board has reviewed all evidence in the claims files and finds that the weight of the evidence for and against the claim is at least in relative equipoise, and that the findings suggest that VA providers misdiagnosed the Veteran's encephalomyelitis, and that VA's failure to diagnose and treat the condition resulted in additional disability, including varying degrees of quadriplegia, bilateral pyramidal tract involvement with severe gait ataxia, and atrophic neuromuscular weakness. As noted above, VA providers questioned the multiple sclerosis diagnosis in 1995, and private providers as well as VA providers, including Dr. N.C.R., questioned the diagnosis in 1999. The diagnosis of encephalomyelitis was not rendered until the Veteran sought treatment in August 1999 in South America. Notably, experts continue to ignore this diagnosis. The evidence also supports the finding that the Veteran's additional disability is the result of fault on the part of VA in furnishing care. As noted above, in July 2000, Dr. N.C.R. indicated that VA providers failed to provide the degree of care that would be expected of a reasonable health care provider. Specifically, he found that a definitive workup could have been accomplished within the VA Medical Center with the input of appropriate experts. The Board considered the VHA experts' opinions, which found no fault or error by VA providers, but finds that the opinion from Dr. N.C.R., the Veteran's treating VA neurologist and the VA Chief of Neurology, to be more probative of this element because the opinion was rendered contemporaneous to the Veteran's treatment for multiple sclerosis and diagnosis of encephalomyelitis. The Board finds that the evidence is at the very least in equipoise as to whether the Veteran has additional disability that was proximately caused by VA's failure to exercise the degree of care that would be expected of a reasonable health care provider. As such, resolving reasonable doubt in his favor, the Board finds that entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for a central nervous system disorder, to include the residuals of encephalomyelitis, is warranted. ORDER Entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for a central nervous system disorder, to include the residuals of encephalomyelitis, is granted. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs