ࡱ> kmjG 2bjbjَ $~;](((8HHH\\\\84$\ }    +   $ H ZHHZZZ\HH} \\HHHH} ZZ Q HHq pr|t\\ri  Department of Memorandum Veterans Affairs Date: February 5, 2001 VAOPGCPREC___5-2001 From: General Counsel (022) Subj: Application of 38U.S.C. 1151 to Claims Based on VA Failure to Diagnose Pre-Existing Condition To: Chairman, Board of Veterans Appeals (01) QUESTIONS PRESENTED: a. For claims filed after November 25, 1991, and before October 1, 1997, does 38U.S.C. 1151 authorize compensation for additional disability alleged to have resulted from the omission or failure by the Department of Veterans Affairs (VA) to diagnose or treat an underlying disease or injury, or does section 1151 authorize compensation only for disability resulting from an act of commission by VA? b. If section 1151 authorizes compensation, with respect to claims filed during that time period, based on VAs omission or failure to diagnose or treat an underlying disease or injury, what are the essential elements of such a claim that must be established in order for a claimant to prevail? DISCUSSION: 1. In the case giving rise to the opinion request, the veteran was examined at a VA outpatient clinic in October 1994 for complaints of sharp, constant chest pain radiating to an arm. Following examination and testing, he was diagnosed with noncardiac chest pain, and medication was prescribed. Several days later, the veteran returned to the outpatient clinic and reported that the chest pain had gone away the day after his prior visit. In January 1995, the veteran died as a result of arteriosclerotic cardiovascular disease with myocardial infarct. A county medical examiner opined that the VA physician had missed the diagnosis of arteriosclerotic cardiovascular disease and, if VA had conducted further testing in October 1994, the veterans death may have been avoided. A VA cardiologist who reviewed the veterans medical records stated that the veterans complaints in October 1994 did not appear to be cardiac in nature and it was clinically reasonable to defer any further cardiac workup. The veterans surviving spouse has filed a claim for benefits under 38U.S.C. 1151, asserting that VAs failure to diagnose the veterans cardiac condition precluded appropriate treatment that would have prevented his death. 2. The current provisions of 38U.S.C. 1151, as amended by Pub. L. No. 104-204, apply only with respect to claims filed on or after October1, 1997. Pub. L. No. 104-204, 422(a) and (c), 110Stat. 2874, 2926-27 (1996); VAOPCGPREC 40-97 (Dec. 31, 1997). Because the veterans claim was filed prior to that date, it is governed by the provisions of 38U.S.C. 1151 in effect prior to October1, 1997. All subsequent references to 38U.S.C. 1151 in this opinion are to the version of that statute in effect prior to October 1, 1997. Section 1151 provides, in pertinent part: Where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation under chapter 31 of this title, awarded under any of the laws administered by the Secretary, or as a result of having submitted to an examination under any such law, and not the result of the veterans own willful misconduct, and such injury or aggravation results in additional disability to or the death of such veteran, disability or death compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded in the same manner as if such disability or death were service-connected. In Brown v. Gardner, 513U.S. 115, 119 (1994), the Supreme Court held that section 1151 did not impose any requirement of a showing of fault on the part of VA, but merely required that an injury have been incurred or aggravated as a result of VA hospitalization, treatment, or other specified activities. The Court stated that the statutory language is naturally read simply to impose the requirement of a causal connection between the injury or aggravation of an injury and hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation. Id. at 119. Applicability of 38 U.S.C. 1151 to Claims Based on Acts of Omission 3. The first question presented in the opinion request asks whether section 1151 authorizes compensation for disability allegedly resulting from VAs failure to diagnose or treat an existing disease or injury or whether the statute permits compensation only for disability resulting from an affirmative act of commission by VA. The language of section 1151 does not suggest any intent to draw a distinction between acts of commission and acts of omission. We are aware of no legal basis for concluding categorically that an act of omission may not, in any circumstance, be found to have caused or aggravated an injury. It is at least possible that VAs failure to take a particular action with respect to a person under VAs care may result in injury or aggravation of an injury. Accordingly, the plain language of section 1151 would authorize payment of benefits whenever it is found that an injury was caused or aggravated by VA hospitalization, medical or surgical treatment, examination, or vocational rehabilitation, regardless of whether the incident causing the injury may be characterized as involving an act of commission or omission. 4. We have found nothing in the legislative history of section 1151 to suggest an intent to distinguish between acts of commission and acts of omission. The history of section 1151 is discussed in detail in Gardner v. Brown, 5F.3d 1456, 1460-62 (Fed. Cir. 1993), affd, 513U.S. 115 (1994), and need not be repeated in full here. Provisions authorizing benefits for injuries incurred or aggravated as a result of VA hospitalization, treatment, and examination were originally enacted by section 213 of the World War Veterans Act of 1924, ch. 320, 43Stat. 607, 623 (1924) (WWVA). We note that, in the debates preceding enactment of the WWVA, Congress expressed concern that certain VA procedures, such as spinal punctures (used as a diagnostic procedure), had caused injury to persons receiving VA medical care. See World War Veterans Legislation: Hearings Before the House Comm. on World War Veterans Legislation, 68th Cong., 1st Sess. 114 (1924). Although the specific incidents discussed in those debates appear to have involved what may be characterized as acts of commission by VA, the discussion of those specific circumstances, by way of example, does not suggest an intent to authorize compensation only in those specific circumstances. 5. Two VA Administrators Decisions have characterized section 1151 and its predecessors as authorizing compensation in claims based on acts of omission by VA. In Administrators Decision No. 944 (July 26, 1954), the issue addressed was whether compensation was payable under section 31 of Pub. L. No. 73-141, 48Stat. 509 (1934), a predecessor of section 1151, for injury or death sustained while a VA patient was being transported from one VA hospital to another VA hospital. The Administrators Decision held that, if the injury sustained by a hospitalized patient proximately resulted from negligence (or other wrongful act or omission) by agents of VA, disability or death resulting from such injury would be compensable. Administrators Decision No. 992 (Dec. 14, 1970) stated that 38U.S.C. 351 (now 1151) had been construed to mean that injury or aggravation of injury must have resulted from negligence or wrongful act or omission by an agent or employee of VA, as distinguished from such negligence, wrongful act, or omission by an independent contractor. Those decisions suggest that VA has not previously construed section 1151 or its predecessors as excluding from its scope claims based on VA omissions, as distinguished from acts of commission. 6. We note also that the distinction between omissions and acts of commission is not entirely clear and it is possible that some circumstances -- e.g., the failure to properly sterilize a wound during surgery -- could perhaps be characterized as either omissions or acts of commission. However, because nothing in section 1151 suggests a need to distinguish between acts of commission and acts of omission, we need not address whether it is possible to state an intelligible distinction between the two. Based on the plain language of the statute, we conclude that 38U.S.C. 1151 authorizes compensation without regard to whether the circumstances causing or aggravating the injury in question may be characterized as omissions or acts of commission. Causation Requirement Under 38 U.S.C. 1151 7. The foregoing conclusion does not fully resolve the question of whether section 1151 authorizes compensation for disability or death due to failure to diagnose or treat an existing disability. Section 1151 requires that the veteran have suffered an injury, or an aggravation of an injury, as the result of VA hospitalization, treatment, or examination. Thus, it must be determined that the VA hospitalization, treatment, or examination caused an injury or aggravation of an injury. See Gardner, 513 U.S. at 119. As applied to claims based on a failure to diagnose or treat a preexisting condition, this causation requirement is susceptible of two different interpretations, as discussed below. 8. It is well established that the causation requirement generally precludes payment of benefits for the natural consequences of a preexisting condition. See 38C.F.R. 3.358(b)(2) (Compensation will not be payable under 38 U.S.C. 1151 for the continuance or natural progress of the disease or injuries for which the training, or hospitalization, etc., was authorized). In Gardner, the Supreme Court stated that it did not intend to cast any doubt on [VAs] regulations insofar as they exclude coverage for incidents of a diseases or injurys natural progression, occurring after the date of treatment. 513U.S. at 120 n.3. A claim based on a failure to diagnose or treat a preexisting condition is, in essence, a claim that VA caused or aggravated an injury merely by failing to prevent the natural consequences of the preexisting condition. Accordingly, it may be plausible to conclude that such claims are precluded by the plain language of section 1151. Common Law Principles of Causation 9. On the other hand, it is well established, in the common law relating to medical malpractice claims, that a negligent failure to diagnose or treat a preexisting condition may be viewed as the legal cause of any consequences of such condition that would have been prevented by proper diagnosis or treatment. See John D. Hodson, Annotation, Medical Malpractice: Loss of Chance Causality, 54A.L.R. 4th 10 (1987) (citing cases from 37 states and District of Columbia). In tort claims, as in section 1151, a claimant generally must establish that he or she suffered an injury as a result of the other partys conduct. See 61 Am. Jur. 2d Physicians, Surgeons and Other Healers, 359 (1981). Legal commentators have noted that determinations concerning injury and causation are often complicated in the context of medical malpractice claims by the fact that the injury complained of may be viewed as a result of the claimants preexisting disability. See Hodson, 54 A.L.R. 4th at 17; Louisell, David W. & Williams, Harold, Medical Malpractice, 8.07, at 8-82 to 8-83 (2000). In addressing this difficulty, courts have generally relied on the principle that physicians owe their patients a duty of skill and care in the diagnosis and treatment of disease and injury. See 61 Am. Jur. 2d Physicians, Surgeons and Other Healers, 200-202, 248 (1981). Accordingly, where a physician fails to exercise the requisite degree of care in diagnosing and treating an existing condition, the physicians actions may be viewed as the proximate cause of the disability or death that would have been prevented by proper care. See Id. 248; W.E. Shipley, Annotation, Proximate Cause in Malpractice Cases, 13 A.L.R. 2d 11, 2,28 (1950). However, a failure to diagnose or treat a preexisting condition is not considered the cause of subsequent disability or death if the physician exercised the degree of skill and care ordinarily required of the medical profession. See 61 Am. Jur. 2d Physicians, Surgeons and Other Healers, 248. Application of Common Law Principles to Claims Under 38U.S.C. 1151 10. Claims under section 1151 and medical malpractice claims both require determinations as to whether an injury was caused by some act or omission associated with medical treatment. Accordingly, it may be reasonable to conclude that Congress intended determinations of causation under section 1151 to be governed by the established common-law principles of causation developed in the context of medical malpractice claims. Section 1151 authorizes compensation for disability or death due to injury incurred or aggravated as the result of VA hospitalization, treatment, or examination. The phrase as the result of is commonly understood to refer to the legal concept of causation. See Gardner, 513 U.S. at 119; Funseth v. Great Northern Ry. Co., 399 F.2d 918, 922 (9th Cir. 1968), cert. denied, 393 U.S. 1083 (1969). Causation, as it relates to claims of injury due to medical treatment, is a familiar legal concept which has developed an established common-law meaning through many years of judicial interpretation. The Supreme Court has stated that where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. Evans v. United States, 504U.S. 255, 259 (1992) (quoting Morisette v. United States, 342 U.S. 246, 263 (1952)). Under this standard, it may be presumed that, in enacting a statute relating to injury incurred as a result of VA treatment, Congress intended to incorporate the common-law principles traditionally applied to determine whether an injury was caused by medical treatment. 11. The provisions of section 1151 were enacted in 1958 by Pub. L. No. 85-857, 351, 72 Stat. 1105, 1124 (1958). Prior provisions employing similar language have existed since 1924. See WWVA 213, 43Stat. at 623; Act of March 28, 1934, ch. 102, 31, 48Stat. 509, 526 (1934 Act) (essentially reenacting the WWVA provision that had been repealed in 1933). The principle that a negligent failure to diagnose and/or treat an existing condition may be viewed as the legal cause of disability that would have been prevented by proper treatment was apparently well established prior to even the earliest of these statutes. See Shipley, Proximate Cause in Malpractice Cases, 13 A.L.R. 2d 11, 28 (collecting cases based on failure to diagnose); Brewer v. Ring, 99 S.E. 358, 364 (N.C. 1919) (The law is, of course, well settled that a physician is liable for wrong diagnosis of a case, resulting from a want of reasonable skill or care on the part of the physician, and followed by improper treatment, to the injury of the patient.) (quoting Just v. Littlefield, 151 P. 780, 781 (Wash. 1915)); Manser v. Collins, 76 P. 851, 853 (Kan. 1904) (It may be said that the failure of the doctor to alleviate the patients suffering was the cause of it, at least, to the excess above the minimum to which it might have been reduced after prompt discovery of the cause and by proper treatment.). 12. In view of the above-referenced authorities, the language of section 1151 does not, in our view, clearly answer the question of whether benefits may be paid based on VAs failure to diagnose or treat a preexisting condition. Although it may be argued that a literal reading of the statutory language precludes compensation under any circumstances for the natural consequences of a preexisting condition, an equally plausible argument can be made that causation language in the statute must be presumed to incorporate the established common-law principles of causation discussed above. 13. The legislative history of section 1151 and its predecessors also does not resolve this issue, as it contains no reference to claims based on the failure to diagnose or treat a preexisting condition. Notably, however, the legislative discussion preceding the 1934 Act indicates a purpose to protect the men who suffer from malpractice at the hands of [VA] physicians. 78 Cong. Rec. 3289 (Feb.27, 1934) (statement of Sen. Steiwer). Although the Supreme Courts Gardner opinion held that section 1151 is not limited to cases of malpractice, this legislative history suggests that cases of malpractice would be covered by section 1151. Additionally, the reference to malpractice is consistent with the presumption, discussed above, that Congress intended to incorporate common-law tort principles of causation, to the extent applicable to section 1151 claims. See Evans, 504U.S. at 259. 14. We conclude that section 1151 is most reasonably construed as authorizing benefits where VA improperly fails to diagnose or provide treatment for a preexisting disease, if it is determined that the veterans disability is greater than it would have been with proper diagnosis and treatment. In addition to the legislative history discussed above, there are several reasons why this interpretation is, in our view, more reasonable than an interpretation which would preclude payment of benefits under those circumstances. 15. First, we believe this interpretation is more consistent with VAs historical construction of section 1151 and its predecessors than the alternative interpretation. Veterans Bureau regulations implementing section 213 of the WWVA provided that [c]ompensation . . . will not be paid for the ordinary residuals of disease or injury following accepted medical treatment nor for the continuation of the original disability where improvement cannot be effected by approved medical or surgical treatment." Veterans Bureau Regulation No. 137, 7701 (June 26, 1926) (emphasis added). The underlined terms imply that compensation may have been payable for the residuals of a preexisting condition where VA failed to follow accepted practices which would have prevented such residuals. This regulation was amended in 1927 to provide that compensation would not be paid for [t]he usual after results of approved medical care and treatment properly administered. Veterans Bureau Regulation No. 167, 7701.B(4). The reference to the results of properly administered care continued the implication that compensation could be paid for results of improper care. However, the 1927 regulation also provided that compensation would not be paid for the continuance or natural progress of diseases or injuries for which the training, hospitalization, etc., was authorized. Id. at 7701.B(2). 16. As reflected in Gardner, VAs regulations have consistently authorized benefits under section 1151 in cases of disability or death attributable to VAs fault or negligence. Similarly, as noted above, Administrators Decisions in 1954 and 1970 defined the scope of section 1151 and its predecessors with reference to common-law principles of negligence. See Administrators decision No. 992 (Dec. 14, 1970); Administrators Decision No. 944 (July 26, 1954). Although VA has not previously addressed the particular issue discussed in this opinion, its long-standing interpretation of section 1151 is consistent with the view that benefits may be paid in circumstances which would ordinarily give rise to malpractice liability in the context of tort claims. 17. The Supreme Courts opinion in Gardner also appears to acknowledge the propriety of applying tort-law principles in making determinations concerning causation and injury under section 1151. The Court indicated that applying the tort principle of volenti non fit injuria (i.e., consent to necessary consequences of treatment) would accurately reflect the legislative intent underlying section 1151. Gardner, 513U.S. at 120 n.3. Additionally, the Attorney General of the United States has concluded that, insofar as section 213 of the WWVA applied to injury incurred as the result of vocational rehabilitation, Congress intended VA to apply the judicially-developed principles of causation from the closely related area of workers compensation laws. 36 Op. Atty. Gen. 61, 64 (May 17, 1929). In VAOPGCPREC 7-97 (Jan. 29, 1997), we concluded that causation standards developed in the area of workers compensation law may also provide relevant guidance in determining whether an injury was caused by aspects of hospitalization other than medical treatment. For purposes of determining whether injury resulted from VA medical treatment or examination, application of causation principles from the closely related field of medical malpractice law would be consistent with the approach recognized by the above-referenced authorities. 18. Related to the foregoing concerns, we believe that the general import of the Supreme Courts opinion in Gardner is that section 1151 is intended to be more, rather than less, inclusive in scope than the liability standards governing medical malpractice claims. It would be anomalous if section 1151 were construed to exclude coverage for disability which medical malpractice law has consistently and historically recognized as resulting from medical treatment. Additionally, we note that our interpretation of section 1151 is consistent with the principle that interpretive doubt in statutes providing benefits to veterans should be resolved in the veterans favor. See Gardner, 513U.S. at 117-18. 19. In summary, interpreting section 1151 to authorize compensation for disability due to an improper failure to diagnose or treat a preexisting condition, in our view, comports most closely with the legislative intent to provide a remedy for those injured as a result of VA treatment. Veterans who seek care from VA in lieu of treatment from other sources may reasonably expect the same degree of skill and care required of physicians generally. Inasmuch as the common law has long established the parameters of the physicians duty to his or her patients and has established standards for identifying injury and causation due to treatment, there is no reason to infer that Congress intended a different causation standard in section 1151. Effect of Gardner Decision 20. As noted above, the common law of medical malpractice recognizes a failure to diagnose or treat a preexisting condition as the cause of subsequent disability only if the failure to diagnose or treat the condition resulted from a failure to exercise ordinary skill and care in the diagnosis and treatment. If a physician exercises the degree of skill and care ordinarily required of members of the medical profession, the fact that the physician misdiagnosed or failed to diagnose a condition cannot be viewed as the cause of subsequent disability flowing from that condition. 61 Am. Jur. 2d Physicians, Surgeons and Other Healers, 248 (1981). Applying this causation standard to claims under section 1151 may appear to conflict with the Supreme Courts decision in Gardner, which held that section 1151 does not require a showing of VA fault in order to receive compensation under that statute. However, the Supreme Court also held that section 1151 plainly requires a showing of a causal connection between an injury or aggravation of an injury and VA hospitalization or treatment. Gardner, 513U.S. at 119. Under the common law pertaining to claims based on failure to diagnose or treat a preexisting condition, a showing that the failure was due to the lack of ordinary care or skill is a necessary element of establishing the causal relationship between treatment and injury. Absent such a showing, there is no legal basis for concluding that the claimants disability resulted from the treatment rendered, rather than the natural progress of the preexisting condition. 21. In Gardner, the Supreme Court addressed the issue of whether section 1151 permitted VA to require a showing of VA fault in addition to a showing that the veterans injury was caused by VA treatment. The Court held that section 1151 imposed only a causation requirement and did not authorize VA to establish an additional requirement for a showing of fault. The Court did not, however, address the circumstance presented here, where a showing of failure to exercise ordinary skill and care is a necessary element of causation, rather than a separate and additional element of entitlement. Accordingly, Gardner does not, in our view, preclude VA from requiring a showing of lack of due skill or care in the limited circumstances where such a showing is necessary to establish the element of causation. See Landgraf v. USI Film Products, 511U.S. 244, 265 (1994) (quoting Cohens v. Virginia, 19U.S. (6Wheat.) 264, 399 (1821)) (general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used). As noted above, absent a showing of lack of due skill or care, there would be no legal basis for concluding that VA treatment caused the veterans disability or death, and VA would have no authority under section 1151 to pay compensation for such disability or death. Accordingly, in this circumstance, application of a fault-based standard is actually more favorable to veterans than the alternative and is consistent with the principle that interpretive doubt should be resolved in favor of veterans. 22. We emphasize that our conclusion does not negate the conclusion stated in 38C.F.R. 3.358(b)(2) that section 1151 generally does not authorize compensation for the natural consequences of a preexisting condition. Rather, our conclusion merely reflects the common-law rule that the failure to exercise proper care in the diagnosis and treatment of a preexisting condition may be viewed as the cause of any disability that would have been prevented by proper treatment. Absent a showing that VA failed to exercise ordinary skill and care, or absent a showing that the disability or death would have been prevented by proper treatment, the rule in section 3.358(b)(2) will govern. Elements of Claim Based on Failure to Diagnose or Treat a Preexisting Condition 23. The second issue presented in the opinion request concerns the elements necessary to establish entitlement to benefits under section 1151 based on a claim that VA failed to diagnose or treat a preexisting condition. Although the factual showing necessary to substantiate a claim may vary depending upon the facts of each case and the nature of the alleged injury and cause, we believe that guidance may be drawn from the case law addressing the issue of causation in the context of malpractice claims. The general principles of causation are summarized in a number of legal treatises. See, e.g., 61 Am. Jur. 2d Physicians, Surgeons and Other Healers, 248, 359 (1981); Louisell & Williams, Medical Malpractice, 8.07; 70 C.J.S. Physicians and Surgeons 72 (1987). Under these standards, entitlement to benefits based on a claim of failure to diagnose or treat a preexisting condition would ordinarily require a determination that: (1) VA failed to diagnose and/or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) that the veteran suffered disability or death which probably would have been avoided if proper diagnosis and treatment had been rendered. 24. With respect to the second element referenced above, courts have held that medical evidence is ordinarily required in order to establish that a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment. See Louisell & Williams, Medical Malpractice, at 8.04[3], 8.07[4]. Determinations as to whether a physicians diagnosis, treatment, or procedures for arriving at a diagnosis or course of treatment conform to ordinary standards of medical care generally present matters outside the ordinary knowledge of laypersons and, therefore, must be shown by medical evidence. Id. at 8.04[3][a]. An exception to this requirement is recognized, however, where the alleged failure to exercise ordinary skill and care is one which would be readily apparent to a layperson. Id. at 8.04[3][b]. We note that VA may assist claimants by obtaining a medical opinion on this issue when deemed necessary to adjudication of a claim. See 38U.S.C. 5103A. 25. With respect to the third element referenced above i.e., proof that disability or death would have been prevented by proper treatment courts have generally held that the failure to diagnose or treat a condition may be viewed as the cause of subsequent disability only if it is probable, or more likely than not, that the disability would have been avoided by proper diagnosis and treatment. See Louisell & Williams, Medical Malpractice, at 8.07[2], Hodson, Medical Malpractice: Loss of Chance Causality, 54 A.L.R. 4th at 18. If the disability would not have been prevented in any event, the physicians failure to diagnose or treat the preexisting condition cannot be viewed as the cause of the disability. Some courts have held that tort liability may be imposed merely where the physicians failure to diagnose or treat a condition resulted in the loss of some chance for a better result, even if it cannot be shown that the resulting disability probably would have been avoided by proper diagnosis and treatment. See Hodson, Medical Malpractice: Loss of Chance Causality, 54 A.L.R. 4th at 18-22, 34-41. This standard, however, would be inconsistent with the requirement in section 1151 that the injury or aggravation of the injury have occurred as the result of VA treatment. Absent a basis for concluding that the disability or death probably would have been avoided by proper diagnosis and treatment, it would be wholly speculative to conclude that VA treatment was the cause of the disability or death. See Crosby v. United States, 48 F. Supp. 2d 924, 928, 931 (D. Alaska 1999) (loss of chance theory is inconsistent with statute requiring causal connection between treatment and injury). Of course, in determining whether proper diagnosis and treatment probably would have prevented subsequent disability or death, the benefit of the doubt rule in 38U.S.C. 5107(b) should be applied when applicable. HELD: a. Under the provisions of 38U.S.C. 1151 applicable to claims filed prior to October1, 1997, benefits may be paid for disability or death attributable to VAs failure to diagnose and/or treat a preexisting condition when VA provides treatment or an examination. Disability or death due to a preexisting condition may be viewed as occurring as a result of the VA treatment or examination only if a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment which probably would have avoided the resulting disability or death. b. The factual elements necessary to support a claim under section 1151 based on failure to diagnose or treat a preexisting condition may vary with the facts of each case and the nature of the particular injury and cause alleged by the claimant. As a general matter, however, entitlement to benefits based on such claims would ordinarily require a determination that: (1) VA failed to diagnose and/or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the veteran suffered disability or death which probably would have been avoided if proper diagnosis and treatment had been rendered. John H. Thompson Attachment: Claims File  As used in section 1151 and in this opinion, the term injury includes diseases. See 38C.F.R. 3.358(a); VAOPGCPREC 1-99 (Feb. 16, 1999).  Common law refers to the body of law derived from judicial decisions rather than statutes. Blacks Law Dictionary 270 (7th ed. 1999). Principles of liability for negligence, including medical malpractice, developed primarily through the common law, although they have been modified in various jurisdictions by statute. See 57A Am. Jur. 2d Negligence 3 (1989).  PAGE 12. 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