Citation Nr: 1804271 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 16-06 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for an additional disability claimed as a result of treatment at VA facilities in Reno, Nevada in July 2004 and Palo Alto, California in August 2004. REPRESENTATION Veteran represented by: Tracy Alsup, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Wysokinski, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the U.S. Navy from March 1981 to August 1989, and from March 1991 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which reopened the Veteran's previously-denied claim. When this matter was before the Board in November 2016, the Board denied entitlement to compensation pursuant to the provisions of 38 U.S.C.A. § 1151. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which in a June 2017 order, granted the parties' joint motion for remand, vacating the Board's decision and remanding the case for compliance with the terms of the joint motion. Since the joint motion, the Veteran presented sworn testimony at a hearing before the undersigned in December 2017. A transcript of that hearing is of record. The Board acknowledges that the Veteran requested that the record be kept open for 60 days following the hearing; however the Veteran will not be prejudiced by a quicker resolution as the Board grants full entitlement to all benefits sought by the Veteran and that are currently before the Board. 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 VA's error in judgement in not timely obtaining an MRI for the Veteran in the course of her care in July 2004 at VA facilities in Reno, Nevada proximately caused the Veteran's disability. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for disability resulting from VA treatment in July 2004 have been met. 38 U.S.C. §§ 1151, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Board grants entitlement to compensation pursuant to the provisions of 38 U.S.C.A. § 1151 as a result of treatment at VA facilities in Reno, Nevada in July 2004 because the most probative evidence of record indicates that the Veteran's disability was proximately due to VA error in judgment in not timely obtaining an MRI. Under certain circumstances, VA provides compensation for additional disability resulting from VA medical treatment in the same manner as if such disability were service-connected. See 38 U.S.C.A. § 1151. For a claimant to qualify for such compensation, the additional disability must not be the result of the veteran's willful misconduct, and such disability must be caused by hospital care, medical or surgical treatment, or examination furnished to the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility. 38 U.S.C.A. § 1151(a). For a claimant to be entitled to compensation when additional disability is caused by VA hospital care, medical or surgical treatment, or examination, the proximate cause of the additional disability must be: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care, treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C.A. § 1151(a)(1); 38 C.F.R. § 3.361. 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 the veteran has an additional disability or died does not establish cause. See 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 diagnose and properly treat the disease or injury proximately caused the continuation 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 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 veteran's additional disability and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) 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). 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). There is no dispute in this case that had the Veteran's spinal condition been diagnosed two days earlier than it was, her outcome would have been better than it was. See VHA ADDENDUM OPINION (July 2016). Accordingly, causation is not in dispute. The chief question for the Board is whether VA's delay in obtaining the needed MRI was a breach of the proper standard of care. The Board finds that it was. None of the VA opinions attempt to explain why the patient could not have been medicated so as to allow her to undergo the MRI on July 7 rather than July 9. A review of the Veteran's medical records shows that her providers suspected drug seeking behavior and therefore would not provide the Veteran with medication when she requested them to undergo an MRI. Eventually, the VA did sedate the Veteran and provided her with an MRI. By then, it was undeniably too late to prevent the Veteran from suffering her disability. The only opinion that addresses the reasonableness of this specific delay is the March 2014 opinion from Dr. G.K who opines that it was unreasonable to delay providing the Veteran pain medication to obtain the MRI when presented with an evidence of infection and significant back pain. This is even though the VA suspected drug seeking behavior. The VA opinions addressing whether medical care was adequate appear to take as an accepted fact that the Veteran could not have been provided sedation for her MRI on July 7. By doing so they fail to inform the Board's analysis as to whether this delay was reasonable. As the only evidence of record that indicates that it was unreasonable to delay providing the Veteran medication so as to facilitate performing an MRI on July 7, the Board finds that the March 2014 opinion from Dr. G.K. is the most probative evidence. Therefore, the Board finds that the Veteran's disability was proximately due to VA error in judgment in not timely obtaining the MRI. The Board's conclusion is based on the balance of medical evidence as well as the lay evidence offered by the Veteran at her hearing which further contextualized the unreasonableness of the delay. ORDER Entitlement to VA compensation under 38 U.S.C. § 1151 for disability resulting from treatment at a VA Medical Center is granted. ____________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs