Single Judge Application Bryant v. Shinseki; Davidson v. Shinseki; Hearsay Evidence; Fed. R. Evid. 801(d)(2)(a)

Remember that single judge decision may not be cited as precedent, yet their reasoning in regard to an issue may be invalueable in helping you formulate your own position or argument[s]

Excerpt from Decision below:

"As to negligence, the appellant testified at a hearing that his consulting
physician, Dr. Bordendorfer, a VA physician, called a pharmacy on his behalf and, in his presence,stated that "'[the appellant] should not have to pay for a single thing on this, the medicine or anything because it was a 100% negligent [sic] on the VA hospital side.'" R. at 26. At a minimum, the hearing officer should
have suggested that the appellant obtain a statement from Dr. Bordendorfer.
See Bryant v. Shinseki, 23 Vet.App. 488, 496 (2010). Furthermore, the Board does not discuss why VA did not question its own physician on his alleged statements and obtain a statement from him as a matter of developing the evidence. The Board discussed this alleged incident but rejected it on the basis that "no such statement
from Dr. [Bordendorfer] is in the record." R. at 10. The Board went on to remark: "The Veteran's account of what a health care provider purportedly said, filtered as it is through a lay person's sensibilities, does not constitute competent evidence." R. at 10-11. As the Court of Appeals for the Federal Circuit (Federal Circuit) has recently made clear, however, the appellant's lay statements cannot be so readily dismissed. See Davidson v. Shinseki,

3

581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting categorical rule that
medical evidence is required when determinative issue is either medical etiology or a medical diagnosis); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence.").
Moreover, if the appellant's account of Dr. Bordendorfer's telephone
conversation with the pharmacy is credited, it would be admissible evidence of an admission by a party opponent. See Fed. R. Evid. 801(d)(2)(a). In this instance, one could hardly expect that such an admission would be duly recorded in VA medical records. See Fed. R. Evid. 803(7) (business records exception only applies to matters of a kind as to which a report is commonly made); see also Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 302 (2008) (stating that Federal Rules of Evidence are not binding on the Court but may provide "useful guidance."). In addition to the physician, the appellant states that there was another man in the room at the time and pharmacist participating in the alleged telephone conversation. The issue begs further evidentiary development, which VA did not undertake."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3583
BILLY S. ALLEN, APPELLANT,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
DAVIS, Judge: U.S. Army veteran Billy S. Allen appeals pro se from a June
1, 2009, Board
of Veterans' Appeals (Board) decision that denied him entitlement to
compensation under 38 U.S.C.
§ 1151 for blindness, right eye, status postcataract surgery, retinal
detachment repair. For the
following reasons, the Court will set aside the Board's June 2009 decision
and remand the matter for
further proceedings and readjudication consistent with this decision.
In his informal brief the appellant generally argues that his additional
right eye disability is
due to the cataract surgery he had at a VA facility in October 2005. He
states that "[t]he original
surgeon was not there to [perform] the eye surgery, so therefor[e] another
surgeon [performed] it,
and I told them not to do so, but then they put me under, and [performed]
massive d[e]struction of
my right eye." Appellant's Informal Brief at 1.1
The record also contains lay testimony concerning
his observations during the surgical procedure and a report that a VA
physician stated that there was
The VA examiner recorded the following narrative from the interview with
the appellant: "He claims that the
resident did surgery and the attending doctor was never in the operating
room. Someone was giving the resident advice
but when it came to implanting the lens the other person [optometrist?]
advised he could not help her." Record (R.) at
111. Later in the report, the appellant quoted the resident as stating "
she wished the doctor would show up.." R.at 116.
It is not clear how the appellant overheard all of this conversation after
having been "put under."
1


negligence on the part of the hospital. The Court construesthe
appellant's statements as an argument
that his additional disability was the result of negligence or improper
treatment during the surgery.
I. ANALYSIS
A veteranwhobelievesthathehas sustained an additional
disabilityresultingfrom treatment
in a VA facility can seek compensation by submitting for benefits Under 38
U.S.C. § 1151(a). This
statute provides that compensation "shall be awarded for a qualifying
additional disability in the
same manner as if such additional disability were service[ ]connected" if
the disability was
(a) . . . not the result of the veteran's willful misconduct and –
(1) . . . was caused by hospital care, medical or surgical treatment, or
examination furnished the veteran under any law administered by the
Secretary . . . 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. Thus, to obtain benefits under 38 U.S.C. § 1151(a), 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. Id.; 38 C.F.R. § 3.361(c)(1), (d)(1) (2010).
In this case, the Board acknowledged that "the medical evidence of record
indicates that the
Veteran has additional disability as a result of the October 2005 right
eye surgery." R. at 10. The
Board therefore correctly observed that
this case turns on the medical question of whether the Veteran's
additional disability
was due to carelessness, negligence, lack of properskill, error in
judgment, or similar
instance of fault on VA's part in furnishing such care, treatment, or
examination, or
[whether] the proximate cause of the additional disability was an event
that was not
reasonably foreseeable.
Id. The appellant does no appear to assert that his additional eye
disability was not reasonably
foreseeable. The Board noted that the record includes a signed informed
consent form document
dated September 16, 2005, approximately three weeks before the surgery.
Although the record of
2


proceedings contains no such document, the Board states that "it
specifically includes loss of vision
and pain and/or infection as risks involved with the surgery." R. at 11.
In view of the lack of any
contrary evidence, the Board's characterization of the informed consent
document negates any
possibility that the appellant's additional disability was an event not
reasonably foreseeable.
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 hte
veteran's informed consent. 38 C.F.R. § 3.361(d)(1). The appellant's lay
statements place both
informed consent and the propriety of the surgical procedure at issue. In
his informal brief, the
appellant states that when he realized that "[t]he original surgeon" was
not present, he asked that the
surgical procedure be discontinued. Appellant's Informal Brief at 1. Such
a request might constitute
a revocation of anyconsent that the appellant mayhave given three weeks
earlier, on the assumption
that the surgery would be performed by the surgeon with whom he had
consulted. The Board needs
to make factual findings in this regard.
As to negligence, the appellant testified at a hearing that his consulting
physician, Dr.
Bordendorfer, a VA physician, called a pharmacyon his behalfand, in his
presence,stated that "'[the
appellant] should not have to pay for a single thing on this, the medicine
or anything because it was
a 100% negligent [sic] on the VA hospital side.'" R. at 26. At a minimum,
the hearing officer should
have suggested that the appellant obtain a statement from Dr. Bordendorfer.
See BryantNext Document v. Shinseki,
23 Vet.App. 488, 496 (2010). Furthermore, the Board does not discuss why
VA did not question
its own physician on his alleged statements and obtain a statement from
him as a matter of
developing the evidence.
The Board discussed this alleged incident but rejected it on the basis
that "no such statement
from Dr. [Bordendorfer] is in the record." R. at 10. The Board went on to
remark: "The Veteran's
account of what a health care provider purportedly said, filtered as it is
through a lay person's
sensibilities, does not constitute competent evidence." R. at 10-11.
As the Court of Appeals for the Federal Circuit (Federal Circuit) has
recently made clear,
however, the appellant's lay statements cannot be so readily dismissed.
See Davidson v. Shinseki,
3


581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting categorical rule that
medical evidence is required
when determinative issue is either medical etiologyor a medical diagnosis);
Buchanan v. Nicholson,
451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that
lay evidence lacks
credibility solely because it is unaccompanied by contemporaneous medical
evidence.").
Moreover, if the appellant's account of Dr. Bordendorfer's telephone
conversation with the
pharmacyis credited, it would be admissible evidence of an admission bya
partyopponent. See Fed.
R. Evid. 801(d)(2)(a). In this instance, one could hardly expect that such
an admission would be
duly recorded in VA medical records. See Fed. R. Evid. 803(7) (business
records exception only
applies to matters of a kind as to which a report is commonly made); see
also Nieves-Rodriguez v.
Peake, 22 Vet.App. 295, 302 (2008) (stating that Federal Rules of Evidence
are not binding on the
Court but may provide "useful guidance."). In addition to the physician,
the appellant states that
there was another man in the room at the time and pharmacist participating
in the alleged telephone
conversation. The issue begs further evidentiary development, which VA did
not undertake.
Furthermore, the record is inconclusive as a refutation of the appellant's
version of events.
There is a progress note that reads: "A Resident or Fellow participated in
this case NO" R. at 340.
Nevertheless, another surgical procedure not of the same date lists
Nasheen Khuddus as a "teaching
physician present for the procedure." R. at 339. The form furtherreads: "
The teaching physician was
present for the critical and key portion of the procedure: Yes." Id. This
is a strange record to have
been made if no student or resident was present or participating in the
procedure. The Board did not
comment on this confusing evidence or seek to clarifyexactlywhat happened
in the operating room.
In rejecting any assertion of negligence, the Board principally relied on
a VA medical
examination report dated August 19, 2006. The VA examiner preliminarily
noted that after the
surgery, the appellant "developed a retinal detachment," and that the
history "sounds like there was
nuclear loss into the vitreous." R. at 111. Ultimately, the examiner
stated that "the unfortunate
complications with [the appellant's] surgery would not be necessarily due
to mistreatment neglect,
incompetence as these are potential complications in the hands of
anysurgeon." R. at 116 (emphasis
added). The report form was left blank in the space that asked for the
reasoning of the opinion. See
R. at 117.
4


This report is inadequate in at least two respects. First, the appellant
has no burden to prove
that such surgical outcomes are "necessarily" the result of negligence as
a general matter. Rather,
he is entitled to prevail if it is at least as likely as not that
negligence or improper care was involved
in his case. See 38 U.S.C. § 5107. The examiner failed to assess the
probabilities on the basis of
the evidence of record. See Jones (Michael) v. Shinseki, 23 Vet.App. 382,
388 (2010) ("[T]he
applicable statutes require some assessment of probability, as opposed to
a definitive statement of
the cause of the disabilities."). Second, the report gives no rationale or
reasoning for the opinion,
which means that it is entitled to no weight in the Board's assessment.
Nieves-Rodriguez v. Peake,
22 Vet.App. at 304.
Furthermore, the examination report furnished no basis for the Board to
evaluate the "degree
of care that would be expected of a reasonable health care provider" in
the surgical procedures. 38
C.F.R. § 3.361(d)(1). Although the examiner listed the results of his
examination, he did not even
allude to the concept of the degreeof care that would normallybe expected
in such procedures, much
less evaluate that standard against the facts contained in the claims file.
In sum, the Court concludes that neither the VA medical examination report
nor the medical
evidence of record is sufficient to establish the facts of the appellant's
cataract surgery. Furthermore,
there is no medical basis on which to evaluate whether those facts,
whatever they may prove to be,
comport with the degree of care to be expected for such procedures.
Therefore, the Court will set
aside the Board decision and remand the matter for further development.
II. CONCLUSION
In consideration of the foregoing, the Court SETS ASIDE the Board's June 1,
2009, decision
and REMANDS the matter for further proceedings consistent with this
decision.
On remand, the appellant will be free to submit additional evidence and
argument in support
of his claim, and the Board is required to consider any such evidence and
argument. See Kay v.
Principi, 16 Vet.App. 529, 534 (2002). A final Board decision following
the remand herein ordered
will constitute a new decision that, if adverse, maybe appealed to this
Court upon the filing of a new
Notice of Appeal with the Court not later than 120 days after the date on
which notice of the Board's
5


new final decision is mailed to the appellant. Marsh v. West, 11 Vet.App.
468, 472 (1998).
DATED: January 10, 2011
Copies to:
Billy S. Allen
VA General Counsel (027)
6