Citation Nr: 21014183 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 18-45 707 DATE: March 11, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for a seizure disorder with residuals is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1960 to December 1963. A virtual hearing was held before the undersigned Veterans Law Judge (VLJ) in November 2020. The record was held open and additional evidence was timely submitted. Entitlement to compensation under 38 U.S.C. § 1151 In December 2015, the Veteran claimed entitlement to compensation for nerve damage to the neck and left upper extremity secondary to grand mal seizure. In June 2016, VA denied the claim. The Veteran disagreed and perfected this appeal. In statements and testimony, the Veteran contends that VA referred him to St. Mary’s Hospital for a cervical epidural steroid injection (ESI) and that the doctor performing the procedure made a mistake which resulted in him having seizures with associated residuals to include nerve damage, left upper extremity neuropathy, headaches, and mental health issues. The issue has been rephrased to better reflect the Veteran’s contentions. A veteran may be awarded compensation for an additional disability, not the result of willful misconduct, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by VA, either by a VA employee or in a VA facility as defined in 38 U.S.C. § 1701(3)(A), and the proximate cause of the disability was (1) 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 (2) an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361(c), (d)(1), (d)(2). 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, or examination to the Veteran’s condition after such care, treatment, or examination has stopped. 38 C.F.R. § 3.361(b). Evidence of record shows that the Veteran underwent a cervical ESI under fluoroscopic guidance at St. Mary’s on February 5, 2014. He seemed to tolerate the procedure well and was discharged. Shortly after the procedure he became confused and his wife took him to the VA Medical Center (VAMC). While en route he had a seizure and was then sent to the emergency room at St. Mary’s for further evaluation. The cause of the seizure was not immediately clear but given its temporal relationship to the ESI, it was diagnosed as “single provoked seizure”. Subsequent records show continued complaints and treatment related to seizures. In April 2018, the Veteran’s VA primary care physician, Dr. K.O., opined that it was at least as likely as not that ongoing seizure disorder was initially due to the ESI. A May 2019 private neurology note indicates the Veteran suffers from a poorly characterized seizure disorder which occurred in 2014 spontaneously after getting injections done via interventional radiology for his neck. Thus, the Board finds evidence of additional disability (seizures). Evidence of record clearly shows that the procedure in question was not performed by VA employees or in a VA facility. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has addressed the matter of how to construe the statutory requirements of § 1151 when the disability causing event occurred during a medical procedure that was not performed by a VA doctor or in a VA facility, or specifically, how to apply § 1151 to referral situations. Ollis v. Shulkin, 857 F.3d 1338 (2017). The Federal Circuit held that when recovery is predicated on a referral theory involving an unforeseeable event under § 1151(a)(1)(B), § 1151(a)(1) requires that VA medical care proximately cause the medical treatment or care during which the unforeseeable event occurred. Section 1151(a)(1)(B) further requires that the unforeseeable event proximately cause the disability. “As such, the chain of causation has two components (neither of which requires fault) - i.e., proximate cause between VA medical care and the treatment, and proximate cause between the unforeseeable event and the disability.” Ollis, 857 F.3d at 1346. In a statement received in December 2015, the Veteran reported that he went for treatment at the VAMC Grand Junction on or about December 2013 to January 2014, and the hospital referred him for private treatment at St. Mary’s where he subsequently underwent a cervical ESI. On review, the Board is unable to locate records documenting the referral and they must be obtained on remand. 38 C.F.R. § 3.159(c)(2). Records from St. Mary’s pertaining to the February 2014 cervical ESI indicate that after the risks and benefits were explained, informed consent was obtained. The informed consent form was not included in the records and as it contains potentially relevant information, it should be requested. 38 C.F.R. § 3.159(c)(1). Finally, if VA records confirm that the Veteran was recommended and/or referred for the procedure in question, an examination and opinion are necessary to address causation. See 38 C.F.R. § 3.159(c)(4). The matter is REMANDED for the following action: 1. Obtain the Veteran’s treatment records from VAMC Grand Junction for the period from December 2013 through February 2014. This should include any fee basis referrals or other approvals or recommendations for non-VA medical care. The Board is specifically interested in any records showing the Veteran was referred to St. Mary’s for neurology consultation and/or cervical ESI. If these records are contained in Vista Imaging they must be printed and included. 2. Ask the Veteran to complete a VA Form 21-4142 for St. Mary’s Hospital specifically to obtain the consent form for the February 5, 2014 cervical ESI. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 3. If the evidence shows that VA recommended and/or referred the Veteran to St. Mary’s Hospital, the Veteran should be scheduled for an examination by a neurologist. Following review of the claims folder, the examiner is requested to answer the following questions: (a) Is it at least as likely as not that VA medical care proximately caused the Veteran to undergo cervical ESI? In making this determination, the examiner should address whether the VA provider was negligent in making any referral and/or recommendation for this procedure. (b) Is it at least as likely as not that an unforeseeable event occurred during the February 5, 2014 cervical ESI which proximately caused the Veteran’s seizure disorder? The examiner is advised that 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 risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with informed consent. A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), or by a deficiency in the record (additional facts are required) or the examiner (does not have the needed knowledge or training). 4. If the AOJ determines that compensation under 38 U.S.C. § 1151 is warranted for a seizure disorder, it should then appropriately develop and adjudicate claims for any secondary residuals to include left upper extremity peripheral neuropathy, nerve damage to the neck, headaches, and mental health issues. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Carsten, Counsel 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.