Is This Good? Board Decision Is Vacated And The Matter Is Remanded For Action Consistent With This Decision.

[Jacque]

Hi, I checked my case online today and saw that it had been updated. Can anyone tell me if this is good or not? What does it mean where it says consistent

with this decision. I can also post my claim on here if needed.

This was the conclusion.

Upon consideration of the foregoing analysis, the record on appeal, and the parties' pleadings,

the July 14, 2008, Board decision is VACATED and the matter is REMANDED for action consistent

with this decision.

DATED: September 30, 2010

[Berta]

I don't really see this as a 'win'- I see this only as a remand for a correction which could ultimately help the claim to be awarded.

BUT then again a CAVC remand is MUCH better then a CAVC denial.

This remand could even possibly open the door for more evidence.

I wish we could read the entire decision.

Do you have an attorney on the brief? Was this a Joint Motion for remand?

Have friend with a joint remand motion- and the VA was directed to do a few things regarding some evidence.

I told the vet to do those things himself and submit the info to the BVA and the RO that had original jurisdiction.

One piece of evidence alone could turn his case around.

[halos2]

...consistent with the decision...of WHAT? Without knowing the decision spectulation runs wild...

[jbasser]

We need to see the case. They issued an opinion and remanded to the board. This sounds a lot more promising than upheld.

J

[Jacque]

Here is the copy/paste with the names removed.

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),

this action may not be cited as precedent.

SCHOELEN, Judge: The appellant, appeals a July 14, 2008, Board

of Veterans' Appeals (Board) decision that denied his claims for compensation benefits for a right

below-the-knee amputation and renal failure pursuant to 38 U.S.C. § 1121. Record (R.) at 2-15.

This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to

38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See

Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate

the Board decision and remand the matter for further proceedings consistent with this decision.

I. FACTS

The appellant served in the U.S. Army from October 1972 through October 1974 and from

March 1976 through April 1978. R. at 1181. The appellant was diagnosed with diabetes in the

mid-1980s and received treatment for this condition at the Grand Junction (Colorado) VA Medical

center (VAMC). The record contains medical records from the facility, dating to 1999. The

appellant was prescribed an oral hypoglycemic medication (glyburide) to treat his diabetes. There

are several medical records dated between February and December 1999 that indicate that the

appellant was occasionally noncompliant with his medication regimen and that he was not following a diabetic diet. R. at 154, 161-63; but see R. at 97, 474, 548-49 (testimony by veteran indicating that

he complied with medical instructions).

In December 1999, the appellant was hospitalized for "poorly controlled diabetes" with

"rampant" end-organ damage and an infected foot ulcer with osteomyelitis. R. at 185. The

appellant's significant problems included a foot ulcer with osteomyelitis, marked hyperglycemia,

poor diabetic control, hypokalemia, peripheral neuropathy, diabetic neuropathy, diabetic retinopathy,

hypercholesterolemia, hypertriglyceridemia, and possible nephrotic syndrome. R. at 185.

The admitting physician stated that "clearly" the oral hypoglycemics (Glyburide) that had

been prescribed were "inadequate" and that "[the appellant's] young age and widespread end-organ

damage argue for much tighter control of his diabetes." R. at 186. In an effort to control the

diabetes, the physician recommended that an "effective BID insulin regimen" be established. Id. The

physician indicated that the appellant would be placed on "insulin and diet with adjustments as

needed to maintain his blood sugars in acceptable range." R. at 182. The VA doctor further noted

that the appellant's blood sugars were "generally" in the mid to high 400s, and that occasionally his

blood sugars were in excess of 800. R. at 184. By January 19, 2000, his blood sugars "had come

under much better control with a controlled diet and insulin." R. at 182.

The appellant's foot ulcers were initially treated with antibiotics and multiple foot

debridements. R. at 181, 191-93. However, in February 2000, the appellant's osteomyelitis had

progressed and his diabetic foot ulcer had worsened. R. at 176. In March 2000, the appellant

underwent a right below-the-knee amputation. Id.; see also R. at 172-74.

The appellant filed a claim seeking disability compensation for the right below-the-knee

amputation and for renal failure. R. at 125. The appellant alleged that VA provided inadequate

treatment for diabetes mellitus resulting in a nonhealing, infected diabetic foot ulcer, which in turn

led to the right below-the-knee amputation. Id. Additionally, he stated that he developed the

diabetic ulcers on his right heel because of the orthotics that VA prescribed. R. at 125.

The appellant also alleges that VA's inadequate treatment of his diabetes resulted in the

development of nephrotic syndrome and renal failure. R. at 125. The thrust of the appellant's claim

is that VA failed to institute insulin therapy to control his diabetes and instead relied on oral

hypogylcemic drugs that did not adequately control his diabetes. R. at 125. In this regard, the appellant alleges that if he had been prescribed insulin earlier to control his diabetes, he would not

have developed the complications that resulted in the right below-the-knee amputation and renal

failure. Id.

In support of his claim, the appellant submitted opinions from Dr. Keveney, a private

nephrologist. R at 509-10; 729-30. Dr. Keveney opined that VA violated the standard of care by

failing to "institute intensive therapy to control his blood sugars early in the course of his disease,

although he had clear road signs of being a patient that would have a progression of diabetic

complications." R. at 729. Additionally, Dr. Keveney explained that white blood cells that fight

infections do not function properly when a person's blood sugars are above 300. R. at 509. Dr.

Keveny explained that "t is imperative that when patients are having difficulties with the infected

processes that their sugars be maintained below 200." R. at 729.

In April 2005 a VA medical examiner opined that the appellant's nonhealing foot ulcer was

one of the complications or sequelae of his diabetes mellitus as he was noncompliant with treatment

and dietary instructions. R at 548-49. He concluded that the appellant's amputation was not caused

by the orthotics prescribed by VA to treat his mid-foot pain. Id.

In May 2006, the Board remanded the appellant's claims to obtain treatment records from the

Grand Junction VAMC. R at 440-50. In July and August 2006, the VA Appeals Management

Division requested "any medical records associated with the veteran's treatment for diabetes mellitus,

prior to 1999, to include those from Dr. Corduban/Courdabon." R at 113-22, 202-03, 431-32. In

September 2006, the Grand Junction VAMC replied that it had no records on file prior to

June18, 2001. R at 118. There is no record of any further inquiry by VA even though it is clear that

the statement from the VAMC was incorrect because the appellant's claims file already contained

some medical records from this facility prior to June 2001.

In July 2007, VA obtained another VA medical opinion regarding the appellant's medical

treatment. R at 96-97. The VA examiner opined that the appellant's treatment at the Grand Junction

VAMC was within the standards of medical care for diabetes mellitus type 2 at that time. Id. He

also saw no evidence that the below-the-knee amputation or renal insufficiency was due to

carelessness, negligence, or lack of proper skill, error in judgment, or fault on the part of VA. Id.

While noting that there was an indication that the appellant had been noncompliant with his treatment regimen in 1999, the VA examiner stated that there was less than a 50/50 chance that the

complications could have been avoided. Id.

The Board issued the July 14, 2008, decision here on appeal. The Board denied the

appellant's claims after concluding that his below-the-right-knee amputation and renal disease were

not proximately caused by VA medical treatment. R. at 5. In reaching this conclusion, the Board

determined that neither disability resulted from "VA negligence, carelessness, or similar instance of

fault." Id. Alternatively, the Board concluded that neither disability was the result of an

unforeseeable event. Id.

Regarding the duty to assist, the Board determined that the duty had been satisfied. In

reaching this conclusion, the Board stated that "the veteran's service treatment records have been

associated with the claims file as have relevant post-service private and VA medical treatment

records." R. at 8.

II. ANALYSIS

A. Entitlement to VA Benefits under 38 U.S.C. § 1151

Pursuant to 38 U.S.C. § 1151, a veteran may be compensated for a "qualifying additional

disability" that was not the result of the veteran's willful misconduct and that is actually and

proximately caused by VA hospital care, medical or surgical treatment, or examination furnished by

VA. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361 (2010) (implementing regulation).1 Section 1151

awards compensation for "qualifying additional disability" in the same manner as if such additional

disability were service connected." "To determine whether a veteran has an additional disability,

VA compares the veteran's condition immediately before the beginning of the . . . . medical or

surgical treatment . . . upon which the claim is based to the veteran's condition after such . . .

treatment." 38 C.F.R. § 3.361(b) (2010). A "qualifying additional disability" is actually caused by

VA care, treatment, or examination when the VA care, treatment or examination "resulted" in the

____________________

Because the appellant's section 1151 claim was filed after 1 1997, the amended version of section 1151,

which incorporates a fault requirement in response to the U.S. Supreme Court's holding in Brown v. Gardner, 513

U.S. 115 (1994), is applicable to his claim. 38 U.S.C. § 1151(a)(1)(A); see Pub. L. No. 104-204, § 422(b)(1), ©,

110 Stat. 2026-27 (1996); see also Boggs v. West, 11 Vet.App. 334, 343-44 (1998) (noting that amended section

1151 applies only to claims filed on or after October 7, 1997, pursuant to specific provision of Congress).

additional disability. 38 C.F.R. § 3.361©(1) (2010). If an additional disability is caused by a

veteran's failure to properly follow medical instructions, such a disability will not be considered to

be caused by VA hospital care or medical treatment. 38 C.F.R. § 3.361©(3) (2010).

A "qualifying additional disability" is proximately caused by VA medical care, treatment, or

examination when the disability results from either the carelessness, negligence, lack of proper skill,

error in judgment, or similar instance of fault on the part of the Department in furnishing the medical

treatment; or the disability results from "an event" that is "not reasonably foreseeable."

38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(d)(1). To establish that the proximate cause of a disability

was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance

of fault on the part of VA, the claimant must show either (1) VA failed to exercise the degree of care

that would be expected of a reasonable health care provider; or (2) VA furnished the care, treatment,

or examination without the veteran's informed consent. 38 C.F.R. § 3.361(d)(1). Alternatively, to

establish that the proximate cause of a disability was an event that was not reasonably forseeable,

the evidence must demonstrate that a reasonable health care provider could not have forseen the

disability. The event does not have to be "completely unforeseeable or unimaginable" but it must

"be one that a reasonable health care provider would not have considered to be an ordinary risk of

the treatment provided." 38 C.F.R. § 3.361(d)(1).

In this case, the appellant alleges that the proximate cause of his additional disabilities is the

carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the

part of the Department in furnishing the medical treatment. Specifically, he alleges that VA failed

to exercise the degree of care that would have been expected of a reasonable health care provider.

B. Duty To Assist and Comply With Remand Orders

The parties agree that the Board committed error when it decided his claims without

obtaining treatment records from the Grand Junction, Colorado, VA medical center (VAMC) for the

period prior to 1999. Appellant's Brief (Br.) at 24-27; Secretary's Br. at 6-12. The Secretary has a

duty to assist a claimant in obtaining evidence necessary to substantiate the claim.

38 U.S.C. § 5103A(a)(1). The Secretary's duty to assist includes making "reasonable efforts to

obtain relevant records . . . that the claimant adequately identifies to the Secretary and authorizes the

Secretary to obtain." 38 U.S.C. § 5103A(b)(1); see Moore v. Shinseki, 555 F.3d 1369, 1372-75 (Fed. Cir. 2009). If the records are maintained by a Federal department or agency, "efforts to obtain

those records shall continue until the records are obtained unless it is reasonably certain that such

records do not exist or that further efforts to obtain those records would be futile."

38 U.S.C. § 5103A(b)(3); 38 C.F.R. § 3.159(e) (2010). If the Secretary is unable to obtain those

records after making reasonable efforts to do so, the Secretary must provide notice of that fact to the

claimant. 38 U.S.C. § 5103A(b)(3); 38 C.F.R. § 3.159(e). The Court reviews the Board's findings

with respect to whether the Secretary has fulfilled his duty to assist under the "clearly erroneous"

standard of review. See Hyatt v. Nicholson, 21 Vet.App. 390, 395 (2007). Additionally, a remand

by this Court or the Board confers on the veteran the right to VA compliance with the terms of the

remand order and imposes on the Secretary a concomitant duty to ensure compliance with those

terms. Stegall v. West, 11 Vet.App. 268, 271 (1998).

In May 2006, the Board remanded this case to the RO with the express direction to obtain

VAMC records dating before December 1999. R. at 440-50. The VA Appeals Management Center

requested these records in July and August 2006. R. at 114, 121. In September 2006, the Grand

Junction VAMC responded that the appellant did not receive treatment from that facility until

June 18, 2001. R. at 118. It was clear that this response was inaccurate because the record already

contained some medical records from that facility from 1999 to 2001. Although this response was

obviously inaccurate, no further inquiry was made to the Grand Junction VAMC. The Court holds

that the Board violated its statutory duty to assist and that it failed to ensure compliance with the

Board's May 2006 remand instructions.

C. Inadequately Developed Record

The record does not support the appellant's argument that the Board's decision should be

reversed because the Secretary erroneously obtained, and the Board relied on, two 2007 VA medical

examinations in violation of Mariano v. Principi, 17 Vet.App. 305 (2003). Although Mariano states

that it "would not be permissible for VA to undertake such additional development if a purpose was

to obtain evidence against an appellant's case," 17 Vet.App. at 312, the Court addressed this

statement in Douglas v. Shinseki, 23 Vet.App. 19 (2009). In Douglas the Court stated that Mariano

must be read in context and held that the Secretary may undertake the development of additional

evidence if necessary to render an informed decision on the claim and if carried out in a neutral and unbiased manner. Douglas, 23 Vet.App. at 26. Here, contrary to the appellant's assertions, nothing

in the record suggests that the VA medical opinions were sought for the purpose of developing

evidence against his claims. Although the VA request for the second medical opinion refers to the

fact that there is an opinion in the record from Dr. Keveney, there is nothing in the VA request to

show that VA was seeking to develop evidence to deny the appellant's claims. Thus, the appellant

has not met his burden of demonstrating error in the determination to seek additional evidence to

decide his claim. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (appellant bears burden

of demonstrating error on appeal).

However, the Court agrees with the appellant that the two VA opinions that the Board relied

on to deny his claims were inadequate. Appellant's Br. at 18-21. The appellant's claims are based

on his theory the he suffers from two disabilities that were proximately caused by carelessness,

negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the

Department in furnishing the medical treatment. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(d)(1). To

establish such carelessness, negligence, lack of proper skill, error in judgment, or similar instance

of fault on the part of VA, a claimant may show that VA failed to exercise the degree of care

expected of a reasonable health care provider. Here, the appellant claims that VA-prescribed oral

medication did not control his diabetes and that VA physicians should have placed him on insulin

before he developed complications such as the diabetic foot sore and renal disease.

The record in this case contains a disagreement among the medical experts as to whether VA

exercised the degree of reasonable care expected of a reasonable health care provider. Two VA

medical examiners summarily concluded that VA physicians followed the appropriate standard of

care. R. at 96-97. However, the VA medical examiners' opinions are inadequate because neither

opinion explains with sufficient detail the standard of care expected of health professionals when

prescribing medication to treat a diabetic patient, including the blood glucose levels that would cause

a physician to discontinue oral medication and prescribe insulin. See Stefl v. Nicholson, 21 Vet.App.

120, 124-25 (2007) (holding that a medical examiner must support his conclusions with an analysis

that is adequate for the Board to consider and weigh against contrary opinions); see also

Nieves- Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (noting that "a medical examination report

must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two"). The medical opinions do not define an accepted standard of care

against which the care provided to the appellant in this case might be measured. Additionally, an

adequate opinion would relate the appellant's specific medical history to the appropriate standard of

care. Green v. Derwinski, 1 Vet.App. 121, 124 (1991) (holding that a medical opinion is considered

adequate where it is based upon consideration of the veteran's prior medical history so that the

Board's "evaluation of the claimed disability will be a fully informed one").

Here, there is an indication that by December 1999, the appellant's blood glucose levels

exceeded 400, and occasionally 800. R. at 184. Because the record does not include the appellant's

pre-1999 treatment records, it is unclear how long the appellant had been experiencing poorly

controlled blood sugars. However, at the time of the appellant's December 1999 hospitalization, the

VA physician concluded that the appellant's blood glucose levels were not being adequately

controlled by oral medication and that he needed to be on insulin. R. at 184-85. Yet, the VA

examiners' opinions do not address whether a reasonable health care provider exercising a reasonable

degree of care would have placed a patient with poorly controlled diabetes, such as the appellant, on

insulin prior to December 1999, and whether the appellant's medical complications could have been

avoided had he been placed on such medication.

The appellant argues that reversal is appropriate in this case because Dr. Keveney's medical

opinion addressed adequately whether the VA physicians failed to exercise the appropriate standard

of care. Appellant's Br. at 11-12. The Court is not persuaded by the appellant's argument because

Dr. Keveney's opinion does not discuss what effect, if any, the appellant's noncompliance with his

medical regimen in 1999 had on his subsequent development of the complications that led to his

amputation and renal failure. The omission of such a discussion makes it impossible for the Court

to conclude that the only permissible view of the evidence is that the appellant's disabilities were the

proximate cause of VA's health care. See Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (holding

that "reversal is the appropriate remedy when the only permissible view of the evidence is contrary

to the Board's decision"). Generally, "where the Board has incorrectly applied the law, failed to

provide an adequate statement of reasons or bases for its determinations, or where the record is

otherwise inadequate," a remand is the appropriate remedy. Tucker v. West, 11 Vet.App. 369, 374

(1998). Here, the record needs further development of the medical evidence, including the appellant's treatment records from the Grand Junction VAMC prior to December 1999. See

Douglas, 23 Vet.App. at 26 (holding that the Secretary is vested with the authority to gather

evidence necessary to render an informed decision on the claim, even if that means gathering and

developing negative evidence).

III. CONCLUSION

Upon consideration of the foregoing analysis, the record on appeal, and the parties' pleadings,

the July 14, 2008, Board decision is VACATED and the matter is REMANDED for action consistent

with this decision.

DATED: September 30, 2010

[Berta]

Thanks for posting this-

I am a Section 1151 claimant and FTCAer.

They killed my husband with piss poor care for his DMII and I proved it.

I used Mariano as referenced in your decision.

"However, at the time of the appellant's December 1999 hospitalization, the

VA physician concluded that the appellant's blood glucose levels were not being adequately

controlled by oral medication and that he needed to be on insulin. R. at 184-85."

" Yet, the VA

examiners' opinions do not address whether a reasonable health care provider exercising a reasonable

degree of care would have placed a patient with poorly controlled diabetes, such as the appellant, on

insulin prior to December 1999, and whether the appellant's medical complications could have been

avoided had he been placed on such medication."

The benefit of filing FTCA as well as Section 1151 claim at same time (if within the 2 year Statute of Limits) is that the VA has to get a Peer Review done.

This is SOP for any valid FTCA claim but not for 1151 claims.

In my case the Peer Review was removed from my C file for many many years.When I received a copy of my C file when I re opened my claim for direct SC death in 2003, it was right at the bottom of the stack- the report the VA told me did not even exist-it was never considered as evidence for the FTCA-or 1151 claim ( of course not-it would have awarded those claims in mo0nths and not years) but I used it for my present claim.

I hope your husband got a complete copy of his med records his C file before he filed the 1151 claim.

VA tried to say my husband was non-compliant with his care too.I quickly knocked down that idea.

His only "non compliance" is that he himself did not go to medical school to be able to properly diagnose himself since they couldnt do that.

His entire med rec revealed he fully complied with their medical instructions even by taking inapproprate medication

(which I also proved contributed to his death)

"The thrust of the appellant's claim

is that VA failed to institute insulin therapy to control his diabetes and instead relied on oral

hypogylcemic drugs that did not adequately control his diabetes. R. at 125. In this regard, the appellant alleges that if he had been prescribed insulin earlier to control his diabetes, he would not

have developed the complications that resulted in the right below-the-knee amputation and renal

failure. Id."

That makes complete medical sense (which alludes VA when they deal with 1151 claims)

"The appellant argues that reversal is appropriate in this case because Dr. Keveney's medical

opinion addressed adequately whether the VA physicians failed to exercise the appropriate standard

of care. Appellant's Br. at 11-12. The Court is not persuaded by the appellant's argument because

Dr. Keveney's opinion does not discuss what effect, if any, the appellant's noncompliance with his

medical regimen in 1999 had on his subsequent development of the complications that led to his

amputation and renal failure."

Can this doctor as well as specifics in the clinical record overcome VA's notion that he was non complaint?

What I mean is could this doctor provide an addendum that overcomes with medical evidence what the VA is hinging on?

"Blame the veteran" is one VA mantra of 1151 claims.

"Here, the record needs further development of the medical evidence, including the appellant's treatment records from the Grand Junction VAMC prior to December 1999."

Do you have copies of these records and have you sent them to the VA?

"The Court is not persuaded by the appellant's argument because

Dr. Keveney's opinion does not discuss what effect, if any, the appellant's noncompliance with his

medical regimen in 1999 had on his subsequent development of the complications that led to his

amputation and renal failure. The omission of such a discussion makes it impossible for the Court

to conclude that the only permissible view of the evidence is that the appellant's disabilities were the

proximate cause of VA's health care. See Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (holding

that "reversal is the appropriate remedy when the only permissible view of the evidence is contrary

to the Board's decision")."

If there in fact WAS documented non compliance, the court is requesting information as to whether the non compliance was actually instrumental in the amputation and renal failure.

Is there any possible basis for their "non compliance" statement?????

It might be easily overcome with evidence.

And another IMO from DR Keveney might turn the tide on that (unless those med recs they are requesting on remand will)

"that indicate that the

appellant was occasionally noncompliant with his medication regimen and that he was not following a diabetic diet" Did you testify that he DID follow a diabetic diet?

Did the VA itself actually provide him with a nutritional expert to monitor his diet?

[Berta]

Something else to consider:

http://care.diabetesjournals.org/content/21/12/2094

The ADA changed it's Diabetes criteria in 1997.

"Yet, the VA

examiners' opinions do not address whether a reasonable health care provider exercising a reasonable

degree of care would have placed a patient with poorly controlled diabetes, such as the appellant, on

insulin prior to December 1999, and whether the appellant's medical complications could have been

avoided had he been placed on such medication."

The VA itself considered 110 as High range of glucose on their Blood Chem reports up to 1994 and perhaps even after that.

Do you have documented HBIAC test values and./or GTT and Glucose values in his med recs from VA at that time frame (prior to 1999) that would show insulin was medically necessary to control his diabetes?

Have you checked his BUN, Tryglycide, Creatine values prior to 1999?

They are asking on remand for VA examiners to do that.

I had to knock down every VA examiner's opinion I got -with medical evidence-for my claims so maybe good idea to check yourself to see if his blood work prior to 1999 indicated aggressive insulin treatment.

The easiest opinion I knocked down (and my IMO doctor concurred with additional opinion ) was from the VA endocrinologist.( a supposedly expert in diabetes.)