Schertz: Section 1151 Claims, the Standard for Disclosure

Gene R. Schertz v. Eric K. Shinseki, Opinion Number 11-2694, decided September 26, 2013 involves a Section 1151 (medical malpractice) case and the question of what is the standard for disclosure of medical risks.

The veteran had a bifemoral bypass graft surgery at a VA Medical Center.  Prior to surgery he signed an informed consent form which included a reference to possibly permanent spinal cord damage.  His wife also admitted a physician informed them of a very slight risk of paralysis that was “played … down”.

After the surgery, the veteran could walk but within 5 days had lost the ability to move his legs and was diagnosed with a spinal cord infarction.  As a result, he filed a claim for compensation under 38 U.S.C. § 1151.  The director of the VAMC spinal cord rehabilitation program opined that the loss of blood flow to the spinal cord is a common but not wholly predicable outcome, and that “this situation is not a routinely anticipated consequence of the vascular disease process, and he should be considered for service-connected benefits.”

On remand, the Board asked for an examiner to state whether the risk of spinal cord infarction was the type of risk a reasonable medical provider would have disclosed.  The chief of surgery stated paralysis as a result of the aortobifemoral graft “is an infrequent complication of less than 1% and is not emphasized prior to the operative procedure.  The complication would have been foreseen; however, it would not normally be discussed in the preoperative discussion because of its low frequency.”

The Board denied compensation saying the VA physician did not commit negligence or a similar instance of fault and the spinal cord impairment and paralysis were reasonably foreseeable complications.

Importantly, 38 CFR § 3.361 states regarding to foreseeability 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”.

The veteran argued it was immaterial whether his surgeon “actually” considered the possibility of paralysis and told him about it, but the proper question is whether it is “reasonably foreseeable” as defined by 38 CFR § 3.361.  He relies on the statement by the chief of surgery to say that a reasonable health care provider would not have disclosed the risk of paralysis.

The Court determined that the term “not reasonably foreseeable” is susceptible to multiple interpretations and that the VA’s interpretation found in 38 CFR § 3.361 is permissible.  The Court then states this is an objective standard of the reasonable health care provider and that the actual foreseeability of an event by a treating physician is not dispositive.  Id. at *8. 

The Court remanded the case for a consideration of the objective standard.  However, they did state the scope of the consent actually provided could be evidence if the physician acted in a manner consistent with how a reasonable provider would have acted.

Decided by Chief Judge Kasold, and Judges Pietsch and Greenberg.

Jones: How Does Medication Impact your Rating?

David J. Jones v. Eric K. Shinseki, Opinion Number 11-2704, decided October 26, 2012 concerns the impact of medicine on a rating.

Specifically, the veteran sought a rate higher than 10% for IBS.  The Board considered the factors identified in the rating schedule but then also considered the fact that medication afforded the veteran some relief from his symptoms.

The veteran argued consideration of relief afforded by medicine is not addressed in the rating schedule and should not be considered.  The VA argued the rating schedule does not differentiate between a claimant’s condition with or without medicine and thus it can look at the impact of medicine.

The Court held the Board committed legal error by considering the effects of medication on the veteran’s IBS when those effects are not explicitly contemplated by the rating criteria.  The Court thought it important that the VA has addressed the effect of medications in other factors, but did not do so regarding this veteran’s disability.  The Court also noted the VA could fix the problem by  amending the relevant rating criteria or by adopting a general regulation addressing the effects of medicine.

The decision is important because it gives arguments to a veteran who the VA is trying to rate when the disability is being treated by medicine and thus at its best.  However, it is incumbent on veterans and their advocates to make sure the VA is not ignoring the law and applying the effect of medicine when the rating schedule does not address medicine.

Decided by Judges Lance, Davis and Pietsch.

Gilbert: Presumption of Soundness

Daniel R. Gilbert v. Eric K. Shinseki, Opinion Number 11-2355, decided October 24, 2012 fleshes out and expounds on the presumption of soundness.

The veteran sought a presumption of soundness regarding psychiatric disabilities that were not reported during his induction or for that matter anytime during service.  The Board found the Gilbert was entitled to the presumption of soundness.  The Board said this was because clear and unmistakable evidence did not show the injury or disease was not aggravated by the veteran’s service.  The Board based this determination on two medical examines that said the veteran reported stressful events during the service and that his depression and anxiety was tightly woven to his service.  While stating a presumption of soundness applied, the Board then considered the nexus between his current disability and alleged service event.  The C&P examiners found no relationship between his current psychiatric disabilities and service.

The veteran appealed, saying it was inconsistent to find the presumption of soundness applies and then deny service connection.  The VA argued the presumption did not end the inquiry and did not obviate the need for a nexus statement, and that the decision was a result of the difference in evidence necessary.  Clear and unmistakable is necessary to rebut the presumption of soundness whereas a preponderance of the evidence is necessary for the nexus prong of the analysis.

The Court began by noting the presumption of soundness is a source of much confusion and litigation, and then gave a primer on how the presumption should be applied.  It then makes clear that the presumption of soundness “help[s] a veteran combat any contention that his disease or injury preexisted service, the presumption of soundness serves as a shield against any assertion by the Secretary that a veteran’s in-service disability that was not noted upon entry to service preexisted service.”  Id. at *6.  However, “before the presumption of soundness is for application, there must be evidence that a disease or injury that was not noted upon entry to service manifested or was incurred in service.”  Id. at *6.  Once a presumption of soundness is applied and not rebutted, the disease or injury is deemed incurred in service.

But, the court stated the inquiry does not end there.  “Even if any injury or disease is deemed incurred in service by virtue of the presumption of soundness (or found to be actually incurred in service), a veteran still must establish that he has a current disability that is related to the in-service injury or disease.”  Id. at *7.  And, that nexus determination is based on a preponderance of the evidence standard, with the benefit of the doubt given to the veteran.

The Court ultimately held that even if the Board erred by implicitly recognizing the psychiatric disabilities manifested in service, there was no prejudice.  This is because the veteran was not credible as to his medical history and there was no nexus statement between the veteran’s current problems and an injury or disease that was incurred in or aggravated by service.

This case is on its face not exceptional.  It restate that the presumption of soundness still requires something during service.  What is more troubling is the Court’s willingness to find a lack of prejudice.  This was called to task in Chief Judge Kasold’s decision.  There, he dissented from the portion finding a lack of prejudice and finds contradictory the Board’s determination the veteran’s depression was incurred in service and was not related to (incurred or aggravated in) service. 

Decided by Chief Judge Kasold and Judges Lance and Davis.

Procopio: Duties of a Hearing Officer

Alfred Procopio Jr. v. Eric K. Shinseki, Opinion Number 11-1253, decided October 16, 2012 examines the duties of a board member during the Board hearing, specifically concerning the duty to explain the chief factual issues and suggest what was needed to substantiate a claim.

The veteran sought benefits for prostate cancer and diabetes mellitus type II secondary to herbicide exposure.  At the video board hearing, the veteran submitted a treatment note from a physician stating linked his medical issues to herbicide exposure.  The board member did not ask any questions or make any statements to the veterans regarding what was needed for his claim.  Specifically, the issue was whether the veteran was exposed to herbicides while aboard the USS Intrepid off the coast of Vietnam.

The Court noted that 38 CFR Section 3.103(c)(2) imposes two duties on a hearing officer: “(1) a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim, and (2) a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record.”  Id. at *5.

The Court determined the Board member was obligated to explain the lack of competent evidence and suggest the submission of evidence relevant to those issues, and that the Board member simply failed to fulfill his duty.

The VA tried to argue the Board member’s failure was harmless because the veteran had actual knowledge of the evidence necessary to support his claim.  Instead, the Court found the veteran thought the nexus statement from his physician was enough and that he had overlooked the need for evidence of herbicide exposure.  The VA also argued a pre-hearing statement of the case cures a Board member’s failures.  The Court found this argument unavailing.

This case brings a light to an important tool for veterans.  Anytime a veteran is in a hearing, they should ask what specifically is need to substantiate their claim.  Then, when the veteran provides that evidence it will be difficult for the VA to deny and attempt to move the goalpost.  Importantly this duty is owed both by a Board member and by RO hearing officers.

Decided by C.J. Kasold and Judges Hagel and Schoelen.

El-Amin: DIC, Alcoholism, PTSD and an Inadequate Medical Examination

Khadijah El-Amin v. Eric K. Shinseki, Opinion Number 10-3031, decided January 15, 2013 concerns a widow’s entitlement to VA benefits for the cause of her husband’s death.

The veteran served in Vietnam and was service connected for PTSD.  When he died, his death certificate listed his cause of death as hepatic cirrhosis.  His widow sought benefits asserting her husband’s PTSD caused or aggravated his alcoholism, which in turn led to his death.

The RO and Board denied the claim, principally relying on a VA medical opinion which found “there is no confirmatory or supportive evidence that the veteran’s post-traumatic stress disorder caused his alcohol abuse….  Conversely, it is more likely than not that the veteran’s alcohol abuse was related to factors other than the veteran’s post-traumatic stress disorder.”

The Court noted that benefits are appropriate if aggravation by a service connected condition can be shown to have contributed substantially or materially to the production of death, combined to cause death, or aided or lent assistance to the production of death.  The Court noted the Board did not address the question of aggravation.

The Court also noted the VA medical opinion was inadequate as it focused solely on direct causation, concluding PTSD did not cause the alcoholism.  The Court considered the opinion’s conclusion that “it is more likely than not that the veteran’s alcohol abuse was related to factors other than the veteran’s post-traumatic stress disorder,” but stated “it is not clear to the Court that this encompasses a discussion of aggravation (the theory on which Mrs. El-Amin bases her claim) at all, let alone with respect to post-traumatic stress disorder.”

Decided by Chief Judge Kasold and Judges Hagel and Moorman.