Citation Nr: 18150344 Decision Date: 11/15/18 Archive Date: 11/14/18 DOCKET NO. 15-10 712 DATE: November 15, 2018 ORDER The claim of entitlement to compensation under 38 U.S.C. § 1151 for epilepsy is denied. The claim of entitlement to compensation under 38 U.S.C. § 1151 for ischemic subdermal hematoma, left frontal, temporal and parietal lobe, is denied. The claim of entitlement to compensation under 38 U.S.C. § 1151 for a left temporal scar is denied. The claim of entitlement to compensation under 38 U.S.C. § 1151 for supraventricular arrhythmia/atrial fibrillation is denied. REMANDED The claim of entitlement to service connection for a low back disability is remanded. The claim of entitlement to service connection for a blood clot on the brain, to include as due to a low back disability, is remanded. The claim of entitlement to a temporary total evaluation because of treatment requiring convalescence or because of hospital treatment in excess of 21 days due to a blood clot on the brain is remanded. The claim of entitlement to a temporary total evaluation because of hospital treatment in excess of 21 days for a condition under 38 C.F.R. § 4.29 is remanded. The claim of entitlement to a temporary total evaluation because of treatment for a condition requiring convalescence under 38 C.F.R. § 4.30 is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s present diagnosis of epilepsy is an additional disability that is proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA in furnishing treatment following a March 2011 accident or hospitalizations for subdural hematoma and atrial fibrillation, or that any additional disability is due to an event not reasonably foreseeable in furnishing that treatment. 2. The preponderance of the evidence is against a finding that the Veteran’s present diagnosis of ischemic subdermal hematoma, left frontal, temporal and parietal lobe, is an additional disability that is proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA in furnishing treatment following a March 2011 accident or hospitalizations for subdural hematoma and atrial fibrillation, or that any additional disability is due to an event not reasonably foreseeable in furnishing that treatment. 3. The preponderance of the evidence is against a finding that the Veteran’s present diagnosis of left temporal scar is an additional disability that is proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA in furnishing treatment following a March 2011 accident or hospitalizations for subdural hematoma and atrial fibrillation, or that any additional disability is due to an event not reasonably foreseeable in furnishing that treatment. 4. The preponderance of the evidence is against a finding that the Veteran’s present diagnosis of supraventricular arrhythmia/atrial fibrillation is an additional disability that is proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA in furnishing treatment following a March 2011 accident or hospitalizations for subdural hematoma and atrial fibrillation, or that any additional disability is due to an event not reasonably foreseeable in furnishing that treatment. CONCLUSIONS OF LAW 1. The criteria for entitlement to VA compensation benefits under 38 U.S.C. § 1151 for epilepsy have not been met. 38 U.S.C. §§ 1151, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.361 (2018). 2. The criteria for entitlement to VA compensation benefits under 38 U.S.C. § 1151 for ischemic subdermal hematoma, left frontal, temporal and parietal lobe, have not been met. 38 U.S.C. §§ 1151, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.361 (2018). 3. The criteria for entitlement to VA compensation benefits under 38 U.S.C. § 1151 for a left temporal scar have not been met. 38 U.S.C. §§ 1151, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.361 (2018). 4. The criteria for entitlement to VA compensation benefits under 38 U.S.C. § 1151 for supraventricular arrhythmia/atrial fibrillation have not been met. 38 U.S.C. §§ 1151, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.361 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from July 1962 to July 1965. In May 2018, the Veteran testified before the undersigned in a videoconference hearing. A transcript of those proceedings has been associated with the record. 1151 Eligibility A veteran may be awarded compensation for additional disability, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished by VA, and the proximate cause of the disability is attributable to: (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) the proximate cause of the disability was an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. To determine whether the veteran has additional disability, VA compares the veteran’s condition immediately before 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 to his condition after such care, treatment, examination, services, or program has stopped. VA considers each involved body part or system separately. 38 C.F.R. § 3.361 (b). For claims, as here, filed after October 1, 1997, a claimant is required to show fault or negligence in medical treatment. For claims filed prior to October 1, 1997, a claimant conversely is not required to show fault or negligence in medical treatment. 38 C.F.R. § 3.358; see also Brown v. Gardner, 115 S. Ct. 552 (1994) (language of statute was plain and did not require showing of fault). But as the Veteran in this case filed his claim after that delimiting date, he must show some degree of fault, and more specifically, that the proximate cause of his disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care or was an event not reasonably foreseeable. 38 U.S.C. § 1151 (a)(1). 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. 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 that: (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). Regarding the latter, the U.S. Court of Appeals for Veterans Claims (Court) has clarified that the standard is not actual foreseeability or possible foreseeability, but that the test is driven wholly by how a “reasonable health care provider” would behave if asked to perform a certain procedure on a veteran with the same characteristics as the veteran in a given case. See Schertz v. Shinseki, 26 Vet. App. 362 (2013). Informed consent is the freely-given consent that follows a careful explanation by the practitioner to the patient of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner must explain in language understandable to the patient the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. The patient must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise if the proposed treatment is novel or unorthodox. The patient may withhold or revoke his or her consent at any time. 38 C.F.R. § 17.32 (c). The informed consent process must be appropriately documented in the health record. Signature consent is required for all diagnostic and therapeutic treatments or procedures that require anesthesia. 38 C.F.R. § 17.32 (d). 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 veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. 1. The claim of entitlement to compensation under 38 U.S.C. § 1151 for epilepsy The Veteran contends that his epilepsy, subdural hematoma, supraventricular arrhythmia and left temporal scar constitute additional disabilities proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA in furnishing treatment following a March 2011 accident, or were not reasonably foreseeable in furnishing treatment. A May 2015 VA examination report addressed the assertion that a failure to adequately treat him following the accident, as well as during his subsequent medication management. The examiner noted hospitalizations in August 2014 for a subdural hematoma, October 2014 for worsening dyspnea, December 2014 for angioedema and January 2015 for angioedema. The Veteran had been treated by VA since March 2014 for atrial fibrillation and hypertension with several modifications in his medications. He developed a worsening supraventricular arrhythmia, ischemic subdural hematoma with left temporal scar, and epilepsy. The examiner reviewed the medical evidence of record in arriving at her conclusions. In sum, the examiner opined that the treatment received by the Veteran through the VA healthcare system did not result in additional disabilities due to carelessness, negligence, lack of proper skills, error in judgment or similar instance of fault on the part of VA. The initial hospitalization for subdural hematoma with hypertension in August 2014 occurred due to documented high-risk conditions for additional complications that included hyperlipidemia, borderline diabetes mellitus type II, abdominal aortic aneurysm status post repair, prostate cancer status post prostatectomy, and chronic atrial fibrillation. The appropriate standard of care was documented with prescriptions showing atrial fibrillation treatment with warfarin and aspirin. The records clearly stated that with the increased risk of subdural hematoma, and significant discussion with the Veteran and his spouse on the risks of removing coumadin occurred. It was after the removal of the coumadin, which was necessary due to the subdural hematoma, that additional hemorrhage was present with the hypertension. Due to the Veteran’s multiple existing co-morbidities, the management of his atrial fibrillation and hypertension were challenging, but there is less than likely any substandard, faulty or negligent care that is evident in the electronic treatment records. Any additional supraventricular arrhythmia, expansion of the subdural hematoma with scar, and seizure or epilepsy was result of the chronic co-morbid conditions. The underlying chronic conditions themselves were responsible for the Veteran’s continued decline in health with no fault ot substandard care of VA. In sum, the claimed disability was less likely as not caused and/or worsened as a result of the VA treatment at issue. There was no additional disability due to carelessness, negligence, lack of proper skills, error in judgment or similar instance of fault on the part of the attending VA personnel. There was no additional disability that could not have reasonably been foreseen by a reasonable healthcare provider. Finally, it was less likely as not that there was a failure on the part of the VA to timely diagnose and/or properly treat the claimed disease/disability that allowed the disease/disability to continue to progress. While the Veteran provided a medical opinion from a private physician, the physician does not address any fault on behalf of VA. In the October 2014 opinion, the physician states that it is his medical opinion that the injuries and/or impairments and disabilities alleged were, as likely as not, due to and a consequence of the Veteran’s VA service. For each of the claimed conditions, the physician simply reports that each occurred while under the care of VA. As it does not address fault, nor does it contend that there was an unforeseeable consequence or lack of informed consent, the probative value of the private medical opinion is significantly diminished. The Board finds that the May 2015 VA medical opinion is highly probative against the claim, as it represents the conclusions of a medical professional and is supported by a fully-articulated opinion with sound reasoning for the conclusion contributing to the weight of the opinion in relation to other evidence in the file. Further, the examiner’s opinions are based on reliable principles, address the pertinent issues of fault and causation, and are supported by other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In deciding an appeal, the Board must consider all pertinent evidence, so not just the Veteran’s lay assertions regarding the occurrence of the claimed events and, here, any purported consequent disability. See AZ v. Shinseki, 731 F.3d 1303, 1311 (Fed. Cir. 2013). Indeed, in Madden v. Gober, 125 F.3d 1477, 1480-81 (Fed. Cir. 1997), the Federal Circuit explicitly rejected the argument that “the Board must accept the Veteran’s evidence at face value, and reject or discount it only on the basis of rebuttal evidence proffered by the agency” and holding, instead, that the Board must determine “the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence.” In Holton v. Shinseki, 557 F.3d 1362, 1370 (Fed. Cir. 2009), the Federal Circuit similarly held that the Board may properly conclude that unrebutted evidence is insufficient to trigger a presumption, so, here, simply because the Veteran believes there is a correlation between his accident and subsequent VA treatment and what he is claiming to now experience as a result or consequence. For these reasons and bases, the Veteran is not entitled to § 1151 compensation. To reiterate, merely showing that he developed the disabilities on appeal during and after VA treatment is not enough to prevail in the absence of a showing of carelessness, negligence, lack of proper skill, error in judgment, or similar finding of fault on the part of VA in performing that treatment. The most probative evidence of record does not indicate that VA medical staff failed to exercise the degree of care that would be expected of a reasonable health care provider when performing the laser surgery. Additionally, the medical evidence of record, on the whole, demonstrates that the present claimed disabilities were caused by co-morbid conditions, and were an inherent risk in medication management for those nonservice-connected disabilities. The Veteran also provided his informed consent, particularly discussing medication management at length with his clinician. Therefore, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is inapplicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim of entitlement to compensation under 38 U.S.C. § 1151 for epilepsy, subdermal hematoma, a left temporal scar, and supraventricular arrhythmia/atrial fibrillation, must be denied. 2. The claim of entitlement to compensation under 38 U.S.C. § 1151 for ischemic subdermal hematoma, left frontal, temporal and parietal lobe See argument in section 1. 3. The claim of entitlement to compensation under 38 U.S.C. § 1151 for a left temporal scar See argument in section 1. 4. The claim of entitlement to compensation under 38 U.S.C. § 1151 for supraventricular arrhythmia/atrial fibrillation See argument in section 1. REASONS FOR REMAND 1. The claim of entitlement to service connection for a low back disability is remanded. The Board cannot make a fully informed decision regarding the claim of entitlement to service connection for a low back disability as the VA examination report of record is insufficient. The Veteran first injured his back in November 1962 while conducting a physical fitness test. Again, in April 1963, the Veteran reported low back pain that began approximately 3 to 4 weeks prior to the treatment. The Veteran’s May 1965 separation examination does not note a back condition. In the Veteran’s May 2018 hearing, he reported that he experienced symptoms of back pain beginning in service that continued after discharge, worsening over time. The Veteran’s July 2013 VA examination, however, does not consider the Veteran’s reports of continuous symptomatology. The examiner opined that the Veteran’s present disability was less likely than not related to his active duty service, but instead caused by a March 2011 injury in the course of his civilian employment. There was no consideration of symptoms after discharge, which may establish a nexus with service. Accordingly, a new examination is necessary on remand in order to thoroughly assess the etiology of the Veteran’s low back disability with consideration of his reports of related symptomatology. 2. The claim of entitlement to service connection for a blood clot on the brain, to include as due to a low back disability is remanded. As the Veteran is asserting entitlement to service connection for a blood clot on the brain, to include as due to his low back disability, the Board finds that this issue is inextricably intertwined with the resolution of the remanded issue. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, this issue is remanded for readjudication following evidentiary development. 3. The claim of entitlement to a temporary total evaluation because of treatment requiring convalescence or because of hospital treatment in excess of 21 days due to a blood clot on the brain is remanded. As the Veteran is asserting entitlement to service connection for a blood clot on the brain, to include as due to his low back disability, the Board finds that the issue of a temporary total evaluation for the condition is inextricably intertwined with the resolution of the remanded issues. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, this issue is remanded for readjudication following evidentiary development. 4. The claim of entitlement to a temporary total evaluation because of hospital treatment in excess of 21 days under 38 C.F.R. § 4.29 As the Veteran’s hospitalizations may be related to his low back disability or possible secondary brain embolism, the claim of entitlement to a temporary total evaluation for subsequent hospitalizations must also be remanded as intertwined with the resolution of those issues. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, this issue is remanded for readjudication following evidentiary development. 5. The claim of entitlement to a temporary total evaluation because of treatment for a condition requiring convalescence under 38 C.F.R. § 4.30 As the Veteran’s convalescence may be related to his low back disability or possible secondary brain embolism, the claim of entitlement to a temporary total evaluation for convalescence must also be remanded as intertwined with the resolution of those issues. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, this issue is remanded for readjudication following evidentiary development. The matters are REMANDED for the following action: 1. Contact the Veteran and his representative in order to identify any outstanding non-VA treatment records regarding the issues on appeal. If non-VA providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the non-VA treatment records and associate them with the claims file. If such records cannot be obtained, inform the Veteran and his representative, and afford an opportunity for him to provide these outstanding records. 2. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). All attempts to contact the Veteran should be documented in the record. 3. Once the aforementioned development is complete, schedule the Veteran for a VA examination to assess the etiology of his low back disability. A complete copy of the claims file must be made available to the examiner, including a copy of this remand. The examiner must consider the Veteran’s lay reports of continuing symptomatology made in his hearing. After a thorough review of the lay and medical evidence of record, the examiner should opine as to the following: (a.) Is it at least as likely as not (i.e. a probability of 50 percent or more) that the Veteran’s low back disability had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service? The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 4. Following completion of the foregoing, the AOJ should review the record and readjudicate the claims on appeal, including any additional indicated development. If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel