16-05 365
16-05 365
| Board of Vet. App. | Sep 18, 2017Background
- Veteran served from March 1964 to March 1967 and appealed a February 2015 RO decision denying 38 U.S.C. § 1151 compensation for liver disease (cirrhosis, liver transplant, metastatic HCC).
- VA records show abnormal LFTs starting in 1997, heavy alcohol use, initial diagnosis of autoimmune hepatitis (AIH) in 2004, later diagnosis of primary biliary cholangitis (PBC) in 2010, and eventual detection of cirrhosis/HCC in 2011–2012.
- The Veteran underwent TACE/RFA for HCC, was listed for transplant (accepted August 2013), received an OLT December 19, 2014, had an acute rejection episode successfully treated, and later developed metastatic HCC treated with sorafenib.
- Veteran alleges VA radiologist negligence delayed diagnosis and caused/worsened liver disease and need for transplant (seeks § 1151 compensation).
- VA obtained a November 2015 hepatology opinion concluding it is less likely than not that VA care caused or worsened the Veteran’s liver disease; the examiner cited autoimmune etiology, appropriate monitoring/treatment, patient noncompliance, and expected disease progression.
- The Board found the VA medical opinion most probative, rejected the Veteran’s lay causation assertions as medically complex, and denied the § 1151 claim (preponderance of evidence against entitlement).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Causation under 38 U.S.C. § 1151 (did VA care cause or worsen liver disease?) | VA radiologist’s gross neglect prevented proper diagnosis and caused/worsened liver disease and need for transplant | Medical records and VA expert show autoimmune disease (PBC/AIH) progression, not caused by VA care; monitoring and workups were timely | Denied — preponderance shows VA care did not cause or worsen the disease |
| VA fault/negligence (carelessness, lack of skill, error in judgment) | Errors in VA imaging/interpretation and resultant delayed diagnosis amount to fault | Expert found no identifiable lapses in care; standard protocols followed; delays attributable in part to Veteran noncompliance | Denied — no evidence VA failed to exercise expected degree of care |
| Reasonable foreseeability / informed consent (was event unforeseeable or treatment without informed consent?) | VA failed to foresee or disclose risks leading to additional disability (implied by delayed action) | Recurrence, transplant complications, and rejection are foreseeable and were monitored; informed-consent/information obligations met | Board did not need to decide foreseeability after finding lack of causation; in any event events were foreseeable and monitored |
| VA duties to notify/assist and adequacy of VA exams | Veteran contends VA did not properly develop evidence supporting claim | VA provided notice, obtained records, and commissioned a competent November 2015 exam; no additional records identified | Denied — VA satisfied notice and duty-to-assist; exam deemed adequate |
Key Cases Cited
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir.) (lay evidence competency limited for complex medical causation)
- Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (medical examiner opinions must be probative and supported by rationale)
- Loving v. Nicholson, 19 Vet. App. 96 (2005) (if Board finds no causation by VA, it need not reach foreseeability)
- Barr v. Nicholson, 21 Vet. App. 303 (2007) (standards for adequacy of VA medical examinations)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (preponderance-of-evidence and benefit-of-the-doubt principles)