Citation Nr: 1304133 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 08-26 026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of deep vein thrombosis of the right lower extremity and pulmonary embolism. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant, S.W., and E.W. ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to July 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. A travel Board hearing was held before the undersigned Veterans Law Judge in January 2011, and a transcript of this hearing is of record. This case was before the Board in October 2011 when it was remanded for additional development. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT Residuals of deep vein thrombosis of the right lower extremity and pulmonary embolism are not shown to have been caused or permanently worsened by medical treatment the Veteran received (or did not receive) from VA. CONCLUSION OF LAW Compensation under the provisions of 38 U.S.C. § 1151 for residuals of deep vein thrombosis of the right lower extremity and pulmonary embolism is not warranted. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION When a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. To substantiate a claim for disability compensation under 38 U.S.C.A. § 1151 filed on or after October 1, 1997, as here, it must be shown that the VA treatment in question resulted in additional disability or death and [emphasis added] that the proximate cause of the disability was 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, or that the proximate cause of additional disability or death was an event which was not reasonably foreseeable. See VAOPGCPREC 40-97; 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. To determine whether a veteran has additional disability, VA compares the veteran's condition immediately prior to the beginning of medical or surgical treatment to the veteran's condition after such care has ceased. 38 C.F.R. § 3.361(b). To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, resulted in the veteran's additional disability. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. Disability that is due to the continuance or natural progress of the disease is not due to VA treatment 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). To establish that fault on the part of VA caused the additional disability or death, it must be shown that VA hospital care, medical or surgical treatment or examination caused a veteran's additional disability and that VA failed to exercise the degree of care expected of a reasonable health care provider, or furnished the hospital care, medical treatment, or surgery, without the veteran's informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from these requirements that are immaterial under the circumstances of the 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 to be determined based on what a reasonable health care provider would have seen. 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran asserts that when he first sought treatment from VA in September 2003 with complaints of pain the right lower extremity, he was not thoroughly examined, but was given pain medication. A few days later, the Veteran experienced chest pain and shortness of breath before passing out, and he had to be hospitalized due to a pulmonary embolism and deep vein thrombosis of the right lower extremity. He has testified that he continues to experience pain in the right lower extremity. The Veteran has argued that a pulmonary embolism would not have developed and that the Veteran's current symptoms would not have occurred if VA had properly diagnosed and treated his deep vein thrombosis when he first sought treatment. Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims files, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Historically, a September 22, 2003, VA outpatient treatment record notes that the Veteran was seen with complaints of leg pain for the past three to four days. He stated that he had not taken any over the counter medication for the pain because he feared drug interaction with his prescription medication. The Veteran also reported a history of cerebral vascular accident in January 1999. The Veteran was again seen on September 28, 2003, with complaints of syncope and collapse. He reported symptoms of shortness of breath and dizziness beginning the previous day. The Veteran was hospitalized; diagnoses included pulmonary embolism and deep vein thrombosis of the right lower extremity. Coumadin was prescribed and the Veteran was discharged in October 2003. VA treatment records show continued complaints of pain and swelling in the right lower extremity since October 2003. During a January 2011 travel Board hearing, the Veteran testified the he continued to have pain in his right leg. He also appeared to associate problems with his left arm with his September 2003 pulmonary embolism and deep vein thrombosis. A November 2011 VA examination report notes the Veteran's history of pulmonary embolism and deep vein thrombosis in September 2003 and current complaints of dyspnea, swelling, and tenderness and pain in the right calf. After examining the Veteran and reviewing the claims files, the examiner opined that it is less likely than not that the Veteran has a current medical condition secondary to his September 2003 pulmonary embolism and deep vein thrombosis, providing evidence against this claim. Specifically, the examiner noted that there is no medical evidence of post-phlebitic syndrome. Furthermore, the examiner noted that pulmonary function tests indicated no obstructive lung diseases. There was mild restrictive lung disease, with a good response to the bronchodilator taken 4 hours prior to the pulmonary function test. The examiner opined that the restrictive lung disease can be associated with the Veteran's social smoking; it was not related to the pulmonary embolism or deep vein thrombosis. An echocardiogram was essentially normal. The examiner opined that the Veteran's complaints of dyspnea, swelling, tenderness and pain cannot be associated with the heart or lungs. Essentially, there is no evidence of any conditions that were aggravated by the Veteran's pulmonary embolism or deep vein thrombosis. The examiner stated, "it is less likely as not that the [V]eteran's current medical condition is secondary to his pulmonary embolism and deep vein thrombosis in September 2003 or that the Veteran's September 2003 pulmonary embolism and deep vein thrombosis permanently aggravated a pre-existing disability." Additionally, the Board notes that the Veteran also filed a medical malpractice lawsuit against VA under the Federal Tort Claims Act which has since been settled. The records related to this case have been associated with the Veteran's claim files, and show that the Veteran's claim was settled for $10,000 in 2005, without any admission of liability or fault on the part of VA. The Veteran's claim must be denied because he has not met the threshold requirement for establishing entitlement to § 1151 benefits, i.e., he has not shown that VA treatment (including any lack thereof) caused additional disability. 38 C.F.R. § 3.361(b). After reviewing the Veteran's claims file in November 2011, a VA examiner noted the Veteran's history of pulmonary embolism or deep vein thrombosis in 2003 and opined that the Veteran does not have any additional disability secondary to his September 2003 pulmonary embolism and deep vein thrombosis. There is no medical opinion to the contrary. In this regard, it is important for the Veteran to understand that this is not a finding that the Veteran does not have any disability or disabilities at this time. It is simply a finding that the Veteran does not have a problem secondary to the September 2003 pulmonary embolism at this time. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). While the Veteran may sincerely believe that he currently has a disability (to include leg pain and dyspnea) caused or permanently worsened by medical treatment he received (or did not receive) from VA for pulmonary embolism or deep vein thrombosis in 2003, these are matters requiring medical expertise; therefore, the Veteran's lay opinions are of no probative value. Id. Whether there is additional pathology or disability following specific medical treatment (or lack of treatment) is, in large measure, a medical question. The 2011 VA medical opinion states that the 2003 medical treatment or lack of medical treatment did cause or worsen any of the claimed disabilities. Reasons and bases for the opinions were provided, as noted above. Again, the Veteran has not offered any competent (medical) evidence to the contrary. The Board has duly considered the benefit of the doubt doctrine. 38 U.S.C.A. § 5107; see also Gilbert, supra. However, the preponderance of the evidence is against the claim. As such, that doctrine is not applicable to this claim and the claim must be denied. As the threshold legal requirement for substantiating a § 1151 claim, a showing of additional disability due to VA medical treatment (or lack thereof), is not met, the claim must be denied. Hence, it is not necessary to address the further requirements for establishing entitlement to the benefit sought, including whether there was negligence or other instance of fault on the part of VA (or whether there is disability due to an unforeseen event). Regarding the Veteran's contention that he has a problem associated with this treatment (or lack or treatment), while the Veteran is clearly competent to note his symptoms (and the Board does not doubt the Veteran's sincerity in his contentions), he simply does not have the medical expertise to cite to one of his current medical problems and then provide a medical opinion as to the cause of that problem. In this regard, the Board must find the medical professional opinion regarding the etiology of the Veteran's problem(s) to be of higher probative value than the Veteran's medical opinion. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply. The claims must be denied. Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in letters mailed in January 2006 and February 2010. Although the Veteran was not provided adequate notice until after the initial adjudication of the claim, the Board finds that there is no prejudice in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the claim. See November 2012 Supplemental Statement of the Case. There is no indication in the record or reason to believe that the decision of the originating agency would have been different had adequate VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The duty to notify has been met. Regarding VA's duty to assist, all appropriate development to obtain the Veteran's pertinent medical records has been completed. The Veteran's available service treatment records are associated with his claims files. Pertinent post-service treatment records have been associated with the claims files. The Veteran underwent the appropriate VA examination which included an adequate medical opinion. The Veteran has not identified any outstanding, available evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. The duty to assist has been met. ORDER Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residuals of deep vein thrombosis of the right lower extremity and pulmonary embolism is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs