Citation Nr: 0922790 Decision Date: 06/17/09 Archive Date: 06/23/09 DOCKET NO. 07-15 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151 for residuals of extramammary Paget's disease, to include the need for surgical intervention undertaken at a VA medical facility. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Theresa M. Catino, Counsel INTRODUCTION The Veteran served on active duty from November 1948 to November 1949 and from August 1950 to February 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating action of the Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. VA exercised the degree of care that would be expected of a reasonable health care provider to the Veteran from 2003 until he was diagnosis with extramammary Paget's disease in 2005. 2. The evidence of record does not establish that the Veteran's need for surgical intervention was due to carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA. CONCLUSION OF LAW The criteria for compensation benefits pursuant to 38 U.S.C.A. § 1151 for residuals of extramammary Paget's disease, to include the need for surgical intervention undertaken at a VA medical facility, have not been met. 38 U.S.C.A. § 1151, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. § 3.361 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is claiming entitlement to compensation under 38 U.S.C.A. § 1151. Specifically, he contends that he was misdiagnosed with a skin rash, that VA failed to recognize a cancerous skin disorder, and this delay resulted in a more pervasive cancer resulting in more extensive surgery than might have otherwise been needed. In pertinent part, the current version of 38 U.S.C.A. § 1151 reads as follows: (a) Compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and -- (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, 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 the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. To determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the medical treatment upon which the claim is based to his/her condition after such treatment has stopped. 38 C.F.R. § 3.361(b) (2008). To establish that VA treatment caused additional disability, the evidence must show that the medical treatment resulted in the additional disability. Merely showing that a veteran received treatment and that the veteran has an additional disability, however, does not establish cause. 38 C.F.R. § 3.361(c)(1) (2008). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment proximately caused a veteran's additional disability, it must be shown that the medical treatment caused the veteran's additional disability; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. 38 C.F.R. § 3.361(d) & (d)(1) (2008). Whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 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 of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32 of this chapter. 38 C.F.R. § 3.361(d)(2) (2008). Throughout the current appeal, the Veteran has contended that VA medical professionals at the Bay Pines VA Medical Center (VAMC) misdiagnosed a dermatological disorder in 2003. Specifically, he maintains that VA's failure to recognize a cancerous skin disorder (extramammary Paget's disease) for more than two years resulted in a delay in his receipt of proper medication which, in turn, resulted in a more pervasive cancer. The Board has considered the Veteran's assertions. Upon consideration of the totality of the evidence of record, however, the Board finds that a grant of compensation, pursuant to 38 U.S.C.A. § 1151, for extramammary Paget's disease is not warranted. A longitudinal review of the record reveals that Ketoconazole cream was prescribed for a fungal infection of the Veteran's groin in March 2003. At a VA outpatient treatment session conducted approximately two-and-a-half months later (in May 2003), he reported that the cream was not alleviating his rash. Subsequently, in March 2004, the Veteran again sought VA treatment for his left groin/testicular rash. He noted that the Ketoconazole cream that he had tried one year ago had not helped and that, as a result, he had started using some over-the-counter hydrocortisone cream and hydrogen peroxide. He acknowledged, however, that the over-the-counter medication had also not worked. Following a physical examination at the March 2004 outpatient treatment session, which reflected the presence of a red macular rash on the Veteran's left groin/testicle area, the treating physician assessed a fungal groin rash, instructed him to stop taking his current creams, and prescribed Ketoconazole cream. In April 2004, he called to report that the Ketoconazole cream was not alleviating his groin rash. He requested another, "stronger" medication. A registered nurse suggested that he return to the VA facility for "evaluation and treatment." A physical examination conducted at a May 2004 VA outpatient treatment session demonstrated the presence of a red macular rash of the left groin with a white discharge. The treating physician assessed a persistent fungal groin rash and referred the Veteran to the VA dermatological clinic. At a dermatological consultation conducted later that same day, a physical examination reflected the presence of large raised red macular lesions on his left groin. Intertrigo "perhaps" with slight candidiasis was assessed, and Nizoral and Desonide creams were prescribed. Between December 2004 and January 2005, the Veteran sought private medical care on two separate occasions. Tinea cruris was assessed. At the January 2005 session, he was "warned of cancer and [was instructed that he] must obtain [a] biopsy if [there was] no improvement." A March 2005 VA outpatient treatment session reported that the Desonide and Fluconozole cream that the Veteran had been taking had not resolved his chronic intertrigo, and the antifungal cream that he had been using had "some benefit." The treating physician confirmed the assessment of chronic intertrigo and refilled the prescription for Ketoconazole cream. In June 2005, the Veteran underwent a private skin punch biopsy, which reflected the presence of extramammary Paget's disease. A second biopsy subsequently completed in July 2005 confirmed this diagnosis. According to private medical records, in August 2005, he underwent multiple punch biopsies of the skin surrounding the extramammary Paget's disease rash of his left groin and of the rash lesion itself. Results showed no evidence of perianal or anal involvement with the extramammary Paget's disease. In October 2005, the Veteran underwent a wide local excision of a 7 cm. X 9 cm. extramammary Paget's lesion of his left groin with scrotal flap closure. At that time, he also underwent biopsies of his right groin. Follow-up private records showed "excellent" healing of his left groin and acknowledged the need for a direct excision of his right groin lesions (which were shown, by the October 2005 punch biopsies, to be positive for extramammary Paget's disease). Otherwise, no evidence of invasive cancer was shown. In April 2006, the Veteran underwent a VA examination, at which time he complained of pain from scarring and stretching of the tissue in his groin area. A physical examination demonstrated the presence of a well-healed barely visible scar in his left groin area as well as some evidence of slight pulling of the tissues between the fold of his leg and his scrotum. The examiner diagnosed extramammary Paget's disease. Additionally, the examiner opined that, since the onset of extramammary Paget's disease, the disorder had progressively worsened. Specifically, following a review of the claim folder, the examiner acknowledged the Veteran's initial surgery in 2005 and noted that he had undergone a second operation in January 2006. In addition, the examiner explained that a post-operative biopsy showed the need for further excision, which was scheduled for May 2006. Further, upon consideration of the examination findings and the Veteran's pertinent medical (including surgical) history, as well as in consultation with the VA Chief of Dermatology Services, the April 2006 VA examiner expressed her opinion that the Veteran "was treated in the usual and customary fashion for the presentation of his disease." In support of this conclusion, the examiner explained that, according to medical literature, extramammary Paget's disease is an uncommon cancer characterized by a chronic eczema-like rash of the skin around the anogenital region. Pruritus is the only complaint in most patients, although some complain of an irritation or rash. This rare cutaneous neoplasm occurred mainly in the elderly-and most commonly in Caucasian women in their 60s and 70s. Extramammary Paget's disease tended to occur as a slowly growing lesion, and patients often gave a history of prolonged treatment with topical corticosteroids and antifungal agents before a diagnosis of the cancer was made by biopsy. As this discussion illustrates, the Veteran was treated at the Bay Pines VA medical facility with antifungal agents for two years prior to the 2005 diagnosis of extramammary Paget's disease. A VA physician who has examined the Veteran and reviewed his claims folder has opined that this treatment for the Veteran "was usual and customary . . . [given] the presentation of his disease." Medical literature supports this conclusion. Significantly, the claims folder contains no conflicting medical opinion. Consequently, the Board concludes that standard medical procedures were followed during the course of the Veteran's treatment at the Bay Pines VA medical facility prior to his 2005 diagnosis of extramammary Paget's disease. Thus, the Board finds that such VA medical care did not cause the Veteran's development of extramammary Paget's disease or result in a worsening of this disorder. See 38 C.F.R. § 3.361(c)(1) (2008) (to establish that VA treatment caused additional disability, the evidence must show that the medical treatment resulted in the additional disability. Merely showing that a veteran received treatment and that the veteran has an additional disability, however, does not establish cause.) Because the Veteran has not been found to have additional disability caused by VA treatment, a decision regarding the proximate cause of such additional disability need not be rendered. See Loving v. Nicholson, 19 Vet. App. 96 (2005). Indeed, without evidence that VA treatment has caused additional disability, the Veteran's claim for compensation benefits pursuant to 38 U.S.C.A. § 1151 for extramammary Paget's disease must be denied. In reaching this conclusion, the Board has considered the Veteran's assertions that VA's two-year delay in diagnosing his extramammary Paget's disease resulted in a two-year delay in his receipt of proper medication which, in turn, caused a more pervasive cancer. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because such actions require only personal knowledge and come to him through his senses. Layno, 6 Vet. App. at 470. However, extramammary Paget's disease is not the type of disorder that a lay person can provide competent evidence on questions of etiology or diagnosis. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Such competent evidence has been provided by the medical personnel who have examined and/or treated the Veteran during the current appeal and by medical records obtained and associated with the claims file. The Board attaches greater probative weight to the clinical findings than to his statements. See Cartright, 2 Vet. App. at 25. In sum, after a careful review of the evidence of record, the Board finds that the benefit of the doubt rule is not applicable and the appeal is denied. Consequently, in light of the above discussion, the Board concludes that the preponderance of the evidence is against the Veteran's § 1151 claim. As there is no doubt to be otherwise resolved, the appeal is denied. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (as amended), 3.326(a) (2008). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2). In the event that a VA notice error occurs regarding the information or evidence necessary to substantiate a claim, VA bears the burden to show that the error was harmless. However, the appellant bears the burden of showing harm when not notified whether the necessary information or evidence is expected to be obtained by VA or provided by the appellant. See Shinseki v. Sanders, 556 U.S. ___ (2009). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in December 2005 and February 2006 that fully addressed all notice elements and were sent prior to the initial RO decision in this matter. The letters informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in May 2006, the RO provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103a and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observations. McLendon v. Nicholson, 20 Vet. 79 (2006). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO obtained pertinent VA treatment records, as well as relevant private medical care reports adequately cited by the Veteran. In addition, although he initially requested a personal hearing before a Veterans Law Judge, he failed to report to the hearing that had been subsequently scheduled in August 2008. Next, a specific medical opinion pertinent to the issue on appeal was obtained at a VA examination conducted in April 2006. Therefore, the Board concludes that available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151 for residuals of extramammary Paget's disease, to include the need for surgical intervention undertaken at a VA medical facility is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs