Citation Nr: 1800292 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 17-03 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been submitted to reopen the previously denied claim of compensation under 38 U.S.C. § 1151 for residuals of a colon injury as a result of radiation seed implantation provided by the VA Puget Sound Healthcare System in January 2006. 2. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a colon injury as a result of radiation seed implantation provided by the VA Puget Sound Healthcare System in January 2006. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from February 1945 to October 1946, December 1947 to March 1950, December 1950 to November 1953, and from December 1954 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) from a December 2013 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). In October 2017 the Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing. A transcript is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. Compensation under 38 U.S.C. § 1151 for residuals of a colon injury as a result of radiation seed implantation provided by the VA Puget Sound Healthcare System in January 2006 was denied in a September 2012 Board decision. 2. Evidence added to the record since the September 2012 Board decision relates to unestablished facts necessary to substantiate the claim for compensation under 38 U.S.C. § 1151 for residuals of a colon injury as a result of radiation seed implantation provided by the VA Puget Sound Healthcare System in January 2006, and raises the possibility of substantiating the claim. 3. The Veteran has radiation proctitis that was not a reasonably foreseeable result of the radiation seed implantation provided by the VA Puget Sound Healthcare System in January 2006. CONCLUSIONS OF LAW 1. Evidence added to the record since the September 2012 Board decision denying compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of a colon injury as a result of radiation seed implantation provided by the VA Puget Sound Healthcare System in January 2006 is new and material, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 2. The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for radiation proctitis as a result of radiation seed implantation provided by the VA Puget Sound Healthcare System in January 2006 have been met. 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.361 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). New evidence is defined as evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Pursuant to 38 U.S.C. § 1151, a Veteran may be compensated for a "qualifying additional disability" that was not the result of the Veteran's willful misconduct and that is actually and proximately caused by VA hospital care, medical or surgical treatment, or examination furnished by VA. 38 U.S.C. § 1151(a) (2012); 38 C.F.R § 3.361 (2017). To determine whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the medical or surgical treatment upon which the claim is based to the Veteran's condition after such treatment. 38 C.F.R § 3.361(b). A "qualifying additional disability" is actually caused by VA care, treatment, or examination when the VA care, treatment or examination "resulted" in the additional disability. 38 C.F.R § 3.361(c)(1). When an additional disability is caused by a Veteran's failure to properly follow medical instructions, such a disability will not be considered to have been caused by VA hospital care or medical treatment. 38 C.F.R § 3.361(c)(3). A "qualifying additional disability" is proximately caused by VA medical care, treatment, or examination when the disability results either from the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical treatment; or from "an event" that is "not reasonably foreseeable." 38 U.S.C. § 1151(a); 38 C.F.R § 3.361(d)(1). To establish that the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, the claimant must show that either (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the care, treatment, or examination without the Veteran's informed consent. 38 C.F.R § 3.361(d)(1). Alternatively, to establish that the proximate cause of a disability was an event that was not reasonably foreseeable, the evidence must demonstrate that a reasonable health care provider could not have foreseen the disability. The event does not have to be "completely unforeseeable or unimaginable," but it must "be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided." 38 C.F.R § 3.361(d)(1). To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of 38 CFR § 17.32. Minor deviations from the requirements of § 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 § 17.32(b) of this chapter, as in emergency situations. Whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is in each claim 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. 38 C.F.R. § 3.361(d). The Veteran's claim of entitlement to compensation under 38 U.S.C. § 1151 for residuals of a colon injury due to radiation seed implantation provided by the VA Puget Sound Healthcare System in January 2006 was denied in a September 2012 Board decision which is now final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302 (2017). At the time of the September 2012 Board decision, the evidence included records from November 2005 VA treatment at which the Veteran was told that if he underwent the brachytherapy, he could expect several months or more of radiation related urinary and rectal symptoms. There was also a small chance of permanent urinary incontinence or severe rectal damage requiring major surgery, including a colostomy. The Veteran orally consented. January 2006 VA treatment records show that the Veteran underwent a transperineal I-125 prostate seed implant due to prostate cancer at a VA Puget Sound Healthcare System facility. June 2007 VA treatment records indicate that the Veteran generally had rectal discomfort before bowel movements, and there was bleeding with bowel movements. The oncologist felt that the Veteran had a case of proctitis that would resolve spontaneously. In July 2007 the oncologist noted that there had been some improvement in the bleeding. A July 2007 colonoscopy showed radiation colitis over the prostatic portion of the rectum with ulceration and spontaneous bleeding. No intervention was required. In April 2008 the Veteran wrote that during the January 2006 procedure a radiation burn developed, which caused a continuously bleeding colon condition. A November 2011 anoscopy showed hemorrhoids. The Veteran had a VA examination in March 2012. The rectal bleeding had continued daily and had not worsened. The examiner opined that there were not any residuals from the January 2006 radiation seed implantation. It was noted that only superficial proctitis and large internal hemorrhoids were found on a colonoscopy, and that repeat colonoscopies showed large internal hemorrhoids and sigmoid diverticula. The colonoscopies had not shown radiation proctitis. An anoscopy performed at the VA examination showed large bleeding internal hemorrhoids. The examiner wrote that because there was no obvious chronic radiation proctitis, there was no residual disability from the January 2006 radiation seed implantation. The additional evidence added to the record since the September 2012 Board decision includes a May 2014 colonoscopy from VA treatment that showed a localized area of moderately congested erythematous and friable (with spontaneous bleeding) mucosa in the rectum. The treating physician noted that this is compatible with radiation proctitis. The Veteran testified at the October 2017 Board hearing that the January 2006 treating physician told him that seeds implanted in the January 2006 VA treatment migrated to his colon. The Board finds the newly submitted documents to be new and material, within the meaning of 38 C.F.R. § 3.156(a), and the claim for compensation under 38 U.S.C. § 1151 for residuals of a colon injury due to radiation seed implantation is reopened. See Shade, 24 Vet. App. at 117. Specifically, the new evidence suggests that the Veteran has radiation proctitis as a result of January 2006 VA treatment. Such evidence is presumed credible for the purposes of determining whether the evidence is new and material. Therefore, the additional evidence is both new and material, and the claim is reopened. The record does not show that the Veteran underwent radiation treatment at any time other than January 2006. The Board finds that the radiation proctitis that the Veteran was diagnosed with in May 2014 was a result of the January 2006 VA treatment. Therefore, there is additional disability due to the VA treatment. VA treatment records show that in November 2005 that the Veteran was told the risks of brachytherapy and orally consented. Those risks did not include radiation proctitis. Given that there is no indication that the risk of such occurrence was mentioned to the Veteran as a possible risk associated with his treatment, the Board finds that this would not likely be a risk of the type that would be disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. Therefore, viewing the evidence in the light most favorable to the Veteran, the evidence shows that the January 2006 radiation seed implantation from VA treatment led to the Veteran's radiation proctitis, and that such results were not reasonably foreseeable. In light of the above, VA compensation under 38 U.S.C. § 1151 is warranted. ORDER New and material evidence has been received, and the Veteran's claim for compensation under 38 U.S.C. § 1151 for residuals of a colon injury as a result of radiation seed implantation provided by the VA Puget Sound Healthcare System in January 2006 is reopened. Entitlement to compensation under 38 U.S.C. § 1151 for radiation proctitis as a result of radiation seed implantation provided by the VA Puget Sound Healthcare System in January 2006 is granted. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs