Citation Nr: 1802576 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-54 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to compensation under 38 U.S.C. § 1151 for a neurological disability, to include dementia and tremor. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from August 1964 to December 1965. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. 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). FINDING OF FACT A neurological disability, to include dementia and tremor, is not proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing reasonable care. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for a neurological disability, to include dementia and tremor, have not been met. 38 U.S.C. §§ 1151, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.361, 17.32 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not given to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist VA has a duty to notify a Veteran of the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). VA also has a duty to assist Veterans in the development of claims. 38 U.S.C. §§ 5103, 5103A (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will to provide; and (3) that the claimant is expected to provide. The notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements apply to all five elements of a service-connection claim, to include (1) Veteran status; (2) existence of a disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice should include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Correspondence dated in April 2015 provided all necessary notification to the Veteran. VA has done everything reasonably possible to assist the Veteran with respect to the claims for benefits. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). The service medical records have been associated with the claims file. All identified and available treatment records have been secured, which includes VA examinations and VA medical records. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). When VA provides an examination, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). VA obtained an expert medical opinion in October 2017. The examiner reviewed the claims file and past medical history, and made appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board concludes that the October 2017 VA medical opinion is adequate for the purpose of making a decision. 38 C.F.R. § 4.2 (2017); Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, in light of the association with treatment records with the file, and the obtaining of the October 2017 medical opinion, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Board is satisfied that all relevant facts have been adequately developed to the extent possible and that no further assistance is required to comply with the duty to assist. Accordingly, the Board will proceed with a decision. Analysis Compensation under 38 U.S.C. § 1151 shall be awarded for a qualifying additional disability in the same manner as if that additional disability was service-connected. A qualifying disability is one which is not the result of a Veteran's willful misconduct, and which was caused by hospital care, medical or surgical treatment, or examination furnished under any law administered by VA, 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. 38 U.S.C. § 1151(a) (2012). To determine whether a Veteran has an additional disability, VA compares the condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination upon which the claim is based to the condition after such care, treatment, or examination. VA considers each involved body part separately. 38 C.F.R. § 3.361(b) (2017). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the additional disability. Merely showing that the Veteran received care, treatment, or examination and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1) (2017). 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. 38 C.F.R. § 3.361(c)(2) (2017). Additional disability 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) (2017). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d) (2017). 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, it must be shown that the hospital care, medical or surgical treatment, or examination caused the additional disability. 38 C.F.R. § 3.361(c) (2017). It must also be shown that VA (i) failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, representative's informed consent. 38 C.F.R. § 3.361(d)(1) (2017). 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. 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) (2017). The Veteran asserts that he has additional disability due to a CT scan performed at a VA facility in June 2014, which he asserts caused a neurological disability, to include dementia and tremors. VA treatment records show that on June 17, 2014, the Veteran reported to a VA hospital with symptoms of tightness and burning across his chest when taking deep breaths. A CT scan was performed . The medical records show that verbal consent was given, and protocol read back with the technologist was performed. The CT scan found multiple pulmonary embolisms. The referring clinician was contacted within 15 minutes of review of the study. The radiologist was confident that the referring clinician fully understood the medical significance of the radiological findings. After reviewing the results of the CT scan with a doctor, the Veteran signed himself out of the hospital against medical advice. The next day he returned to the hospital and was admitted overnight. In a September 2014 letter, the Veteran and his spouse, B.C.K., stated that the Veteran underwent a CT scan in June 2014. They said that once the CT scan machine was turned on, the blanket covering the Veteran levitated, a bright hue came from the machine, and the Veteran became very warm. In a February 2015 letter, B.C.K. stated that the Veteran had symptoms of dementia which were not apparent prior to the June 2014 CT scan. In April 2015, she stated that the Veteran exhibited different behavior regarding stuttering, memory loss, difficulty with numbness, and shaking hands in the days following the CT scan. VA obtained an expert medical opinion regarding the Veteran's claim in October 2017. A VA neurologist reviewed the available records. Concerning the VA testing conducted between June 17, 2014, and June 19, 2014, including the CT scan, and the neurologist observed that the Veteran had diffuse Lewy body dementia (DLB). The neurologist commented that patients with DLB have tremors, dementia, and visual hallucinations. The examiner considered the Veteran's report that the CT scan exploded, that he saw a grinding wheel, and that he saw a magenta colored sheet in air afterwards, was most likely a visual hallucination. The neurologist found no documentation of a malfunction of the CT scanner, and specified that even if there was a problem with the CT scan, it would not cause tremor, dementia, or DLB. The neurologist opined that there was no disability caused by the VA personnel or testing, as the Veteran's tremors and dementia were an idiopathic neurodegenerative disorder. There was no additional disability. The examiner opined that the VA conducted and exercised appropriate care and furnished appropriate treatment according to the Veteran's condition and symptoms, including his original admission in June 2014 for pulmonary embolism. The examiner specifically considered the Veteran's and spouse's statements but found that there was no official documentation of an explosion occurring by the radiology department. The neurologist additionally noted that the Veteran was noted to be hallucinating during the particular admission. Finally, the neurologist emphasized that as part of DLB, patients had vivid visual hallucinations that are believable to the patient. The Board assigns great probative weight to the competent, probative, and comprehensive findings of the October 2017 VA examiner. The opinion was made following a thorough review of the claims file and medical history. Notably, the VA examiner concluded that there was no evidence of carelessness, negligence, lack of proper skill, error in judgment, or other similar instance of fault on the part of VA in furnishing hospital care and medical treatment to the Veteran. The Board acknowledges that the Veteran and his spouse are competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, to the extent that the Veteran and his spouse attribute his dementia and tremors to the administration of a CT scan by VA medical staff, such a determination involves complex medical findings beyond the Veteran's and spouse's lay competence. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board finds that the Veteran's and his spouse's statements in that regard are of less probative value than the findings of the October 2017 VA examiner. The Board has carefully considered the Veteran's spouse's September 2014 letter, in which she quotes a doctor saying "Nobody should be subjected to medical imaging using ionizing radiation without a good rationale for it." However, that statement from the doctor is general in nature and not specific to this particular Veteran in this particular situation. That statement does not provide evidence of any additional disability due to VA treatment. Notably, that statement was considered by the October 2017 VA neurologist referenced above, and the October 2017 VA neurologist still offered a negative opinion. Therefore, the Board finds that statement from the private doctor does not support a finding that it is at least as likely as not that there is any additional disability due to attributes carelessness, negligence, lack of proper skill, error in judgment, or other similar instance of fault of the part of VA. In conclusion, the Board finds that the preponderance of the evidence weighs against the claim of entitlement to compensation under 38 U.S.C. § 1151 for a neurological disability, to include dementia and tremors. The competent and probative evidence of record does not support a finding that any additional disability was proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing reasonable care, or an event not reasonably foreseeable. Accordingly, the criteria for VA compensation benefits under 38 U.S.C. § 1151 are not met, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to compensation under 38 U.S.C. § 1151 for a neurological disability, to include dementia and tremor, is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs