Citation Nr: 21004622 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 14-32 662 DATE: January 27, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for type II diabetes mellitus is denied. FINDING OF FACT The evidence demonstrates that the Veteran developed no additional disability of his type II diabetes mellitus as a result of VA treatment. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for type II diabetes mellitus have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from January 1974 to April 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision by the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2015, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. The transcript of that hearing is of record. The issue on appeal was remanded for additional development in May 2018. 1. Entitlement to compensation under 38 U.S.C. § 1151 for type II diabetes mellitus. VA law provides that compensation shall be awarded for a qualifying additional disability or a qualifying death of a Veteran in the same manner as if that additional disability or death were service-connected. A disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the Veteran’s willful misconduct and the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA, and the proximate cause of the disability or death 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. To obtain compensation, a claimant must show: (1) a qualifying additional disability, (2) actually caused by the treatment furnished by VA, and (3) a proximate or direct cause that is either a fault on the part of VA or an event not reasonably foreseeable. To establish VA fault, it must be shown that VA failed to exercise the degree of care that would normally be expected of a reasonable health care provider or that VA furnished care without the Veteran’s informed consent. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(c)(1), (d)(1). To determine whether a Veteran has an 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 the Veteran’s condition after the care, treatment, examination, services, or program has stopped. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(b). Claims based on additional disability or death due to hospital care, medical or surgical treatment, or examination must meet the applicable causation requirements, either actual causation or proximate causation for continuance or natural progress due to VA failure to timely diagnose and properly treat a disease or injury. To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the 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. 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). With regard to carelessness or negligence, 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 was the proximate cause of a veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran’s additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran’s informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361(d)(1). With regard to reasonable foreseeability, whether the proximate cause of a veteran’s additional disability or death 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 foreseen or disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361(d)(2). Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient or the patient’s surrogate of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner, who has primary responsibility for the patient or who will perform the particular procedure or provide the treatment, must explain in language understandable to the patient or surrogate 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 or surrogate 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 the patient or surrogate if the proposed treatment is novel or unorthodox. The patient or surrogate may withhold or revoke his or her consent at any time. 38 C.F.R. § 17.32(c). The Court has held that “the failure to advise a patient of a foreseeable risk can be considered a minor, immaterial deviation under the regulation if a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk.” McNair v. Shinseki, 25 Vet. App. 98, 107 (2013). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. The Veteran contends that compensation is warranted for an additional disability of his type II diabetes mellitus as a result of VA treatment. He asserts that Avandia, a medication prescribed by a VA physician, worsened his diabetes. At his October 2015 hearing he testified that he had a worsening of his diabetes as a result of Avandia. However, he acknowledged that he had no evidence to support his contention that Avandia created an additional disability and made his diabetes worse. VA records show that compensation under 38 U.S.C. § 1151 was established for coronary artery disease caused by the use of Avandia in a July 2018 rating decision, VA treatment records dated in August 2004 document that the Veteran had severely uncontrolled diabetes mellitus, chronic renal insufficiency, and morbid obesity. It was noted that he was in noncompliance with insulin intake because use of insulin would result in him losing his commercial driver’s license. It was also noted that he was made aware of all complications and informed that the best options for him at that time included taking Avandia. A December 2008 report indicates Avandia treatment was discontinued. VA examination in April 2012 included a diagnosis of type II diabetes mellitus. It was noted that the Veteran was diagnosed with diabetes in December 1998 and treated with Avandia from 2003 to 2007. The examiner found it was less likely that a worsening of diabetes was caused by or a result of the administration of Avandia. As rationale it was noted the Veteran’s lifestyle was mainly sedentary and that his risk factors included obesity, sedentary employment, and uncontrolled diabetes while taking Avandia. In an addendum the examiner stated, in essence, that there was no indication of any neglect on VA’s part. It was noted that while any medication can cause unknown side effects, that did not mean the prescribing of the medication indicated negligence or neglect. VA medical opinion in August 2019 found that a review of evidence of record did not reveal complications of the Veteran’s diabetes that could be due to carelessness, negligence, or lack of proper skills, errors, or similar instances of VA fault. In fact, the examiner stated that it could not be determined what exact additional disability the Veteran claimed had been caused by such treatment. It was further stated that the Veteran had been treated with the appropriate medication and had been referred to a nutrition specialist. He was on Avandia from 2003 to December 2008. The examiner found the degree of care that would be expected of a reasonable health care provider was demonstrated. Based upon the evidence of record, the Board finds the Veteran developed no additional disability of his type II diabetes mellitus as a result of VA treatment. Although he has asserted that Avandia use had worsened his diabetes, at his October 2015 hearing he testified that he had no evidence to support his contention that it created an additional disability and made his diabetes worse. The Board finds the August 2019 VA examiner’s opinion is persuasive that no such additional disability is shown by the evidence of record. The opinion is shown to have been based upon a substantially correct review of the evidence of record and to have adequately considered the lay statements of record. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the Veteran’s claim. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Douglas The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.