Citation Nr: 0814087	
Decision Date: 04/29/08    Archive Date: 05/08/08

DOCKET NO.  03-23 243	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to benefits pursuant to 38 U.S.C.A. § 1151 for 
additional disability based on failure to timely diagnose 
tonsil carcinoma.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

A. Barone, Associate Counsel


INTRODUCTION

The veteran served on active duty from October 1963 to 
October 1967.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a November 2002 rating determination 
of a Regional Office (RO) of the Department of Veterans 
Affairs (VA).  This matter was previously before the Board on 
multiple occasions, most recently in February 2006, when it 
was remanded for additional development of the evidence.


FINDING OF FACT

The veteran suffers from significant additional functional 
disability as a result of a failure to timely diagnose tonsil 
carcinoma during VA treatment in 1998.


CONCLUSION OF LAW

The criteria for entitlement to compensation for additional 
disability based on failure to timely diagnose tonsil 
carcinoma during treatment provided by the Department of 
Veterans Affairs, under the provisions of 38 U.S.C.A. § 1151, 
have been met.  38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. 
§§ 3.358, 3.361 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Analysis

The veteran is claiming entitlement to compensation under the 
provisions of 38 U.S.C.A. § 1151 for additional disability 
based on failure to timely diagnose tonsil carcinoma during 
treatment provided by VA.  Formerly, 38 U.S.C.A. § 1151 
provided that "[w]here any veteran suffers an injury or an 
aggravation of an injury, as a result of hospitalization, 
medical or surgical treatment, or the pursuit of a course of 
vocational rehabilitation . . . awarded under any of the laws 
administered by the Secretary, or as the result of having 
submitted to an examination under any such law, and not the 
result of such veteran's own willful misconduct, and such 
injury or aggravation results in additional disability to or 
the death of such veteran, disability or death compensation . 
. . shall be awarded in the same manner as if such 
disability, aggravation or death were service-connected."  
38 U.S.C.A. § 1151 (West 1991).

Earlier interpretations of the pertinent statute and 
regulations required evidence of carelessness, negligence, 
lack of proper skill, error in judgment, or similar instances 
of indicated fault on the part of VA, or the occurrence of an 
accident or an otherwise unforeseen event, to establish 
entitlement to 38 U.S.C.A. § 1151 benefits.  See, e.g., 38 
C.F.R. § 3.358(c)(3) (1994).  Those provisions were 
invalidated by the United States Court of Appeals for 
Veterans Claims (formerly the United States Court of Veterans 
Appeals) (Court), in Gardner v. Derwinski, 1 Vet.App. 584 
(1991).  The Gardner decision was affirmed by both the United 
States Court of Appeals for the Federal Circuit, see Gardner 
v. Brown, 5 F.3d 1456 (Fed.Cir. 1993), and the United States 
Supreme Court, see Brown v. Gardner, 513 U.S. 115 (1994).  
The United States Supreme Court, in affirming the Court's 
decision, held that the statutory language of 38 U.S.C.A. 
§ 1151 simply required a causal connection between VA 
hospitalization and additional disability, and that there 
need be no identification of "fault" on the part of VA.  
See Brown, supra.  38 C.F.R. § 3.358 was amended in 1995 to 
conform to the Supreme Court decision.  The amendment was 
effective November 25, 1991, the date the Court issued the 
Gardner decision.  60 Fed.Reg. 14,222 (March 16, 1995).  
Subsequently, Congress amended 38 U.S.C.A. § 1151, effective 
for claims filed on or after October 1, 1997, to preclude 
benefits in the absence of evidence of VA carelessness, 
negligence, lack of proper skill, error in judgment or 
similar fault on the part of VA in furnishing care, or an 
unforeseen event.  Pub.L. No. 104-204, § 422(a), 110 Stat. 
2926 (Sept. 26, 1996), codified at 38 U.S.C.A. § 1151 (West 
2002).

The revised provisions of 38 C.F.R. § 3.358 state that where 
it is determined that there is additional disability 
resulting from a disease or injury or an aggravation of an 
existing disease or injury suffered as a result of 
hospitalization or medical treatment, compensation will be 
payable for such additional disability.  Compensation is not 
payable for the necessary consequences of medical or surgical 
treatment properly administered with the express or implied 
consent of the veteran.  38 C.F.R. § 3.358(c)(3).  
"Necessary consequences" are those that are certain or 
intended to result from the VA hospitalization or medical or 
surgical treatment.  Id.

The Board received the current claim in August 2002.  As 
noted above, the amended version of 38 U.S.C.A. § 1151 has 
added the requirement that there must be evidence showing 
that the additional disability for which benefits are sought 
was proximately caused by carelessness, negligence, lack of 
proper skill, error in judgment, or similar instance of fault 
by VA or by an event not reasonably foreseeable.

Effective September 2, 2004, the regulations pertaining to 
claims for compensation pursuant to 38 U.S.C.A. § 1151 filed 
on or after October 1, 1997, were amended.  See 69 Fed.Reg. 
46,426 (Aug. 3, 2004) [adding 38 C.F.R. § 3.361].  Those 
regulations largely implemented the provisions of 38 U.S.C.A. 
§ 1151.

In pertinent part, 38 C.F.R. § 3.361 provides as follows:

In determining whether a veteran has an additional 
disability, 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 or death, it must be shown that the 
hospital care or medical or surgical treatment caused the 
veteran's additional disability or death; 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 or death 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).

In this case, the veteran was diagnosed with squamos cell 
tonsil carcinoma in December 1998.  This diagnosis followed a 
referral to an ear, nose, and throat (ENT) specialist is late 
November 1998 regarding substantial symptoms of sore throat 
and ear pain which did not resolve with treatment.  The 
earliest period of well-documented continuous VA treatment 
for throat symptoms began with multiple consultations in 
August 1998.  However, the Board observes that the veteran 
was noted to have "throat pain" in a handwritten VA 
treatment note from April 1998.

VA medical opinions dated September 2003 and September 2005 
(amended in October 2006) offer analysis to the effect that a 
referral to an ENT specialist should have taken place earlier 
than late November 1998.  The same medical opinions also 
indicate, however, that it cannot be sad that the veteran has 
suffered additional disability as the result of this delay in 
referring him to an ENT specialist.  The VA medical opinions 
from 2003 and 2005 draw conclusions based upon a timeline 
which assumes that the veteran was first treated by VA for 
his pertinent symptoms in August 1998.  However, the Board 
observes that there are indications in the documents of 
record which corroborate the veteran's contention that he 
received treatment for his throat symptoms prior to August 
1998.  In this regard, the Board notes that an August 14, 
1998 handwritten consultation worksheet shows "Had Rx for 
Pen helped some but never went away" and further notes "on 
Pcn x 2 mo; ø Abx x 1 mo."  The Board reads these notes as 
indicating that the veteran reported receiving a prescription 
for an antibiotic (recalled to be penicillin) for his throat 
symptoms for a period some time prior to the August 1998 
consultation.  Significantly, a VA prescription medication 
log shows that the veteran was prescribed Amoxicillin caplets 
on April 23, 1998 by a VA medical facility.  The Board also 
observes that an August 31, 1998 consultation worksheet again 
appears to refer to this prior prescription in connection 
with treatment of the throat symptoms.  The Board believes 
there is a reasonable showing that the veteran was prescribed 
antibiotics by VA for his throat symptoms in April 1998.

The VA medical opinions from 2003 and 2005 draw conclusions 
based upon a timeline which essentially assumes that the 
veteran was first treated by VA for his pertinent symptoms in 
August 1998.  Both opinions agree that there was a delay in 
proper diagnosis of the carcinoma, and the September 2005 
opinion (including as amended in October 2006) estimates the 
delay to have been "about 6-8 weeks."

In the Board's view, an additional expert opinion was 
necessary to evaluate the medical questions in this case in 
light of the possibility that the veteran was actually first 
treated by VA for pertinent symptoms in April 1998.  In 
November 2007, the Board solicited an independent medical 
expert opinion pursuant to 38 U.S.C.A. § 7109.  In February 
2008, the Board received an expert medical opinion from the 
Director of Head and Neck Surgery, Division of Otolaryngology 
at George Washington University.  Review of the medical 
evidence of record led the specialist to conclude that the 
veteran was indeed first treated for throat pain in April 
1998: "There is clear indication that patient has been 
complaining of sore throat first noted on April 1998."  The 
letter continues on to acknowledge that "However initial 
diagnosis of tonsillar malignancy can be difficult when it is 
confined to the tonsil."  Based upon the timeline of 
symptoms and treatment following from the April 1998 
treatment, the specialist's February 2008 letter concludes 
that "Specialist referral should have occurred on August 
1998 or soon after the failed medical treatment by the end of 
August 1998.  There appears to have been a delay in diagnosis 
of 12-14 weeks."  Significantly, the February  2008 
specialist's report states that "It is my opinion that an 
earlier diagnosis may well have required less extensive 
resection of the patient's pharynx and soft palate with 
better functional outcome."

The February 2008 specialist's report summarizes, "diagnosis 
of tonsillar malignancy has been delayed by 12-14 weeks 
resulting in larger tumor at the time of diagnosis."  
Furthermore, "The patient has suffered more functional loss 
with regard to swallowing and speech as a result of delay in 
diagnosis allowing further growth of tumor, requiring more 
extensive resection. ... I would qualify the additional 
disability as very significant."  The Board finds the 
February 2008 report to be the most probative of the medical 
reports, as it most substantively contemplates the entirety 
of the veteran's treatment and symptom history documented in 
VA treatment records, and it presents the most persuasive 
discussion of medical analysis on the pertinent medical 
questions.  Thus, the Board finds that the most probative 
medical evidence supports the veteran's contention that VA 
failed to diagnose his tonsil carcinoma in a timely fashion, 
and that the delay resulted in additional disability.  
Therefore, the Board concludes that entitlement to 
compensation for additional disability based on failure to 
timely diagnose tonsil carcinoma during VA treatment is 
warranted under the provisions of 38 U.S.C.A. § 1151.

In closing, the Board acknowledges the Veterans Claims 
Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5102, 5103, 
5103A, 5107 (West 2002) and implementing regulations at 38 
C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a).  The Board also 
acknowledges that various judicial decisions have addressed 
the notice and assistance requirement of VCAA.  See generally 
Quartuccio v. Principi, 16 Vet.App. 183 (2002); Charles v. 
Principi, 16 Vet.App. 370 (2002); Huston v. Principi, 17 
Vet.App. 195, 202 (2003); Paralyzed Veterans of America v. 
Secretary of Veterans Affairs, 345 F.3d 1334 (Fed.Cir. 2003).  
However, the Board need not consider the question of VCAA 
compliance since there is no detriment to the veteran as a 
result of any VCAA deficiencies in view of the fact that the 
full benefit sought by the veteran is being granted by this 
decision of the Board.


ORDER

Compensation under the provisions of 38 U.S.C.A. § 1151 for 
additional disability based on failure to timely diagnose 
tonsil carcinoma during treatment by the Department of 
Veterans Affairs is warranted.  The appeal is granted.


____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs