Citation Nr: 0811562 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 06-36 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for cancer of the epiglottis and neck. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The veteran served on active duty from January 1972 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina , which denied the benefits sought on appeal. The veteran presented testimony at a video conference hearing chaired by the undersigned Veterans Law Judge in December 2007. A transcript of the hearing is associated with the veteran's claims folders. In February 2008, the veteran submitted additional evidence, for which he waived initial RO review and consideration. FINDING OF FACT The preponderance of the competent and probative evidence is against concluding that the veteran's cancer of the epiglottis and neck was caused or aggravated by VA medical treatment, or that it was a proximate result of carelessness, negligence, lack of proper skill, error in judgment, or an event not reasonably foreseeable in the furnishing of medical care by VA. CONCLUSION OF LAW The requirements for compensation pursuant to 38 U.S.C.A. § 1151 for cancer of the epiglottis and neck due to VA medical treatment have not been met. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002 & Supp 2007); 38 C.F.R. §§ 3.159, 3.358, 3.361 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the appellant in April 2005 correspondence of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and notice of what part VA will attempt to obtain. VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim. VA informed the claimant of the need to submit all pertinent evidence in his possession. While he was not provided notice how disability ratings and effective dates are assigned, that error was harmless in light of the decision reached below. While the appellant did not receive full notice prior to the initial decision, after pertinent notice was provided the claimant was afforded a meaningful opportunity to participate in the adjudication of the claim, and the claim was readjudicated. The claimant was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication or otherwise prejudiced the veteran. Background In March 2005 the veteran filed a claim in essence alleging that he had throat cancer which had been misdiagnosed by VA in August 2000. The veteran argues that as a result of the purported misdiagnosis his cancer was not treated until February 2003 at which point the condition had significantly worsened. VA treatment records dated August 2000 show the veteran was seen at the VA Medical Center emergency room with complaints of a swollen right neck for three days which had gradually increased in size. There was mild pain when he touched it or swallowed. A throat culture revealed Strep Pyogenes. The examiner attempted to call the veteran and left a message on his answering machine with no response. He was treated with amoxicillin for 14 days. By August 28, 2000, the veteran had reported that the swelling had gone down. There were several subsequent visits for other complaints during the next two years but none related to any throat or neck conditions. In January 2003 the veteran was seen at the VA Medical Center emergency room for a report of painful swelling of the right neck below the jaw for ten days. The veteran thought it was a swollen lymph node. He denied a sore throat, fever, night sweats, or weight loss. He complained of burning in the throat when he swallowed. Examination revealed a 2x1 inch firm swelling in the anterior cervical node region, right about an inch below the jaw. It was tender with well defined borders, and a smooth surface. The overlying skin was normal. The examiner further noted that it was unclear what the swelling is. The examiner presumed that it was an enlarged lymph node due to unknown site of infection. The examiner noted that the appellant's white blood count was normal, but he treated the appellant empirically with antibiotics. The examiner told the veteran to return in seven to ten days for follow up. The examiner noted that if there was lymph node swelling due to an infection, then it should resolve by then. If however there is no change in the size of the swelling or it increases, the examiner recorded that he would refer the appellant to surgery for an excision biopsy of the swelling. In a February 2003 follow up visit the examiner noted a large, firm, four centimeter by two centimeter nontender mass to the right cervical area, with a well defined border. No other adenopathy to the submandibular area was noted. The assessment was an enlarged cervical node. The veteran referred to be seen by general surgery in one week. Subsequently in February 2003 the veteran went to the Highsmith Rainey Memorial Hospital emergency room where he was diagnosed with an epiglottis carcinoma and large right necrotic mass. In March 2003 he underwent a microsuspension laryngoscopy with excisional biopsy of the epiglottis mass at the Cape Fear Valley Hospital . The diagnosis was squamous cell carcinoma, moderately-poorly differentiated, invasive. He subsequently underwent radiation and concurrent chemotherapy from May to July 2003. An April 2005 letter from Eric L. Mansfield, M.D., notes that in February 2003 the veteran reported a greater than seven month history of throat pain, persistent cough, and problems swallowing. He also said that he developed a four centimeter left neck mass two months prior to seeing him at the Highsmith emergency room. He was diagnosed with cancer of the epiglottis and underwent a radical neck dissection and received six weeks of radiation treatment. He continued to be seen every three months due to risk of recurrent head and neck cancer. He further noted that: As you know, head and neck cancer is in most cases an indolent disease which takes months to grow to the size that he had when he presented. Certainly, his record show that he had been to the VA hospital several times prior to presenting to the Highsmith Emergency Room. Head and neck cancer is a disease where early detection is key. The earlier the disease is diagnosed, usually the better the prognosis. Earlier diagnosis would have helped him as well. A July 2005 VA Medical Center opinion noted that the veteran was first seen in August 2000 at the Medical Center emergency room with a three day history of a "swollen right neck." The diagnosis was an enlarged right submandibular gland. Throat culture grew Strep Pyogenes and the veteran was treated with amoxicillin for ten days. He reported that the swelling had gone down and he felt better. He was seen several times in 2001 and 2002 and never mentioned any problems with his throat or neck. In January 2003 he was seen in the VA emergency room complaining of swelling in the right side of his neck for ten days. He was treated with oral antibiotics and scheduled for a follow up visit in February 2003 at which time he was scheduled for surgery for a right neck mass. Unfortunately the appointment was for September 2003. The veteran elected to go to the local hospital where he was seen by ear, nose and throat, had a biopsy and subsequently underwent surgery. The examiner opined that: I do not see any evidence of misdiagnosis in August 2000. Pt was subsequently seen several times at this institution and at the Durham VA Medical Center and he never complained of any problem with his neck or throat. When he was seen at the emergency room in January and February of 2003, neck mass was found and the patient was referred to the surgery clinic for biopsy. Obviously there was a delay in receiving appointment for the biopsy and the patient elected to go to the private provider. It is difficult to say if an earlier intervention would have changed the severity of his disability. Analysis The veteran claims entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for cancer of the epiglottis and neck, as the result of misdiagnosis or malpractice by VA physicians. In determining whether a veteran has an additional disability for purposes of entitlement to 38 U.S.C.A. § 1151, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after such care or treatment. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability, it must be shown that the hospital care or medical or surgical 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 or medical or surgical treatment without the veteran's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1). 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; 38 C.F.R. § 3.361(d)(2). Upon careful consideration of the evidence of record, the Board finds that the preponderance of the evidence is against the veteran's claim for benefits under the provisions of 38 U.S.C.A. § 1151 and 38 C.F.R. § 3.361. The appellant has submitted no competent evidence which tends to substantiate his contention that he suffered additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment. Further, there is no competent evidence that the proximate cause of any additional disability was due to the veteran's treatment through the VA Medical Center emergency room, or any follow- up care provided. The evidence shows record notes that when the veteran was seen in August 2000 with complaints of a swollen right neck, a throat culture revealed Strep Pyogenes. The veteran was treated with amoxicillin. In a follow up call four days later the veteran noted that his swelling had gone down and that he felt better. Subsequently in January 2003, about two and a half years later, he was seen complaining of a ten day history of painful swelling of the right neck below the jaw. At that time the examiner presumed the swelling was an enlarged lymph node and treated it accordingly. He properly scheduled the veteran for a follow up visit noting that if there was no change in the size of the swelling or it increased, he would refer the veteran to surgery for an excision biopsy. Subsequently the veteran was scheduled to be seen in the VA surgical clinic in September 2003 for a biopsy. Rather than wait until September 2003, the veteran elected to go to the Highsmith Rainey Memorial Hospital where he underwent a microsuspension laryngoscopy with excisional biopsy of the epiglottis mass. The diagnosis was squamous cell carcinoma. The veteran argued that he was misdiagnosed in August 2000. At that time a throat culture revealed Strep Pyogenes. The veteran was properly treated with amoxicillin, and in a follow up telephone call from the VA four days later the veteran noted that his swelling had gone down and that he felt better. There is no competent evidence that the strep throat diagnosed in August 2000 was incorrect. When he was again seen in February 2003, VA treatment records clearly reveal that he was scheduled for a biopsy of his neck mass to determine its cause. The veteran suffered no disability due to the care provided by VA. He chose to receive care from a private provider who diagnosed and treated him for epiglottis cancer a few weeks later. There is no evidence which demonstrates additional disability as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part. In the absence of competent evidence which demonstrates additional disability as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, the Board concludes that compensation under 38 U.S.C.A. § 1151 for additional disability following VA treatment is not warranted. Accordingly, the claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 for cancer of the epiglottis and neck is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs