Citation Nr: 1322153 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 09-42 795 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability claimed as a result of VA treatment. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H.J. Baucom, Associate Counsel INTRODUCTION The Veteran had active service from February 1976 to April 1977. This matter comes to the Board of Veterans' Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran filed a claim for benefits under 38 U.S.C.A. § 1151 contending that he received improper treatment at the VA in connection with treatment for kidney cancer. Specifically, he claimed that in March 2005 VA physicians unnecessarily removed surgically a large lipoma from his right flank. He contends that had VA medical providers performed a CAT scan of his abdomen, the large mass on his right kidney, renal cell carcinoma, would have been discovered and the lipoma excision would be unnecessary. As such, he claims he is entitled to benefits for residuals of the lipoma excision, including pain, scarring, tightness and disfigurement, which interfere with his ability to work. The March 2009 rating decision phrased the issue as compensation under 38 U.S.C.A. § 1151 for clear cell renal carcinoma with history of nephrectomy, and discussed the Veteran's kidney cancer development only. In his notice of disagreement, the Veteran explained that he was not seeking compensation for kidney cancer, or removal of the kidney or progression of kidney cancer, rather he was claiming improper treatment for removing a lipoma unnecessarily, and that this improper treatment (lipoma excision) left him disabled on the right side of his body. The September 2009 Statement of the Case (SOC) phrased the issue as compensation for clear cell renal carcinoma with history of nephrectomy and noted that the Veteran's claim for post operative residuals for a March 2005 excision lipoma was a separate claim. In November 2009 the Veteran filed an appeal, stating that the SOC addressed the wrong issue and again stating that he was asking for benefits for improper treatment (lipoma excision) and the disabling effects it has caused. In January 2010 a separate rating decision was issued denying entitlement to compensation under 38 U.S.C.A. § 1151 for right flank lipoma excision with scarring, pain and adhesion symptoms. Although the Veteran has not filed a notice of disagreement that is currently part of the claims file, with this separate rating decision the issue of compensation for right flank lipoma excision with scarring, pain and adhesion symptoms is before the Board as this is the claim the Veteran has sought the entire time. The Board has recharacterized the issue broadly as entitlement to benefits under 38 U.S.C.A. § 1151 for residuals of VA treatment, to encompass both the Veteran's claim, compensation for improper treatment: excision of lipoma with residual scarring, pain, and adhesion symptoms, and the claim developed by the RO, compensation under 38 U.S.C.A. § 1151 clear cell renal carcinoma with history of nephrectomy. The Veteran should not be prejudiced by interpretation of his claim and the appeal for compensation for residuals of VA treatment is properly before the Board. The Veteran's virtual VA file has been reviewed. FINDINGS OF FACT 1. The weight of the competent and probative evidence of record is against the claim that residuals of lipoma excision with pain, scarring and discomfort were caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA. 2. The weight of the competent and probative evidence of record is against the claim that VA failed to timely diagnose and treat renal cell carcinoma. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C.A. § 1151 for additional disability caused by VA treatment have not been met. 38 U.S.C.A. §§ 1151, 5103(a), 513A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). A July 2008 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran's service treatment records and VA medical treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran contends that quality assurance records, if any, should be obtained. 38 U.S.C.A. § 5103A requires the AOJ/BVA to make reasonable efforts to request quality assurance records if the Veteran has provided information sufficient to locate them, and, if access to the records is denied on the basis that they are protected, requires the denial be appealed to the Office of General Counsel. VA may consider them in adjudicating the claim only if VHA or OGC concludes that the records and documents are not confidential and privileged. VAOPGCPREC 1-11. As the Veteran has not provided sufficient information to locate quality assurance records, an attempt to get the records has not been made. A VA examination was conducted in February 2009 and a VA opinion was obtained in December 2009. The Veteran has argued that an examination is necessary, not just an opinion, however a physical examination is not necessary to address the issue of residuals of VA treatment under 38 U.S.C.A. § 1151. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examination and opinion were based on thorough review of the medical evidence and were supported by sound rationale and explanation. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis 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 a veteran's condition immediately before the beginning of the medical treatment upon which the claim is based to his or her condition after such treatment has stopped. 38 C.F.R. § 3.361(b). 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 he or she had an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). 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 his or her 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 a veteran's or, in appropriate cases, his or her representative's informed consent. 38 C.F.R. § 3.361(d). 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). The Veteran contends that the VA improperly treated his kidney cancer by not getting a CAT (or CT) scan in March 2005 and instead treating his complaints of right side pain by removing a large lipoma on his right flank. He contends that this was an unnecessary surgical procedure which resulted in residual disabilities including scarring, pain, and adhesion, which interfere with his ability to work. The Veteran argues that had VA performed a CAT (or CT) scan in March 2005, the mass on his right kidney would have been found and the lipoma surgery would not have been done and he would not be disabled on the right side of his body. The Veteran reports experiencing tightness, adhesion and pain underneath the large, 20 cm, indented scar and has submitted pictures of his scar which demonstrate the depth and length of the indention. Indeed, the record reflects that on March 24, 2005, the Veteran had an excision of a right flank lipoma. The operation report indicated that the Veteran had a lipoma present on his right flank for the last 5 years which had more recently become sore and bothersome. The Veteran has since stated that this was inaccurate as he reported experiencing pain for five years, not that he had a lipoma for five years. The operation report states that the lipoma was quite large in size, measuring 20 cm by 10 cm and the incision was approximately 20 cm in length. The lipoma capsule extended down to the fascial covering of the latissimus dorsi and abdominal wall muscles and electrocautery was used in order to free the capsule from the muscle layers below. Several interrupted deep dermal 3-0 Vicryl sutures were placed in order to reapproximate the skin edges and close the dead space below. A deep dermal drain was placed connected to the JP suction bulb. Prior to surgery the Veteran acknowledged that he understood the nature of the proposed procedures, attendant risks involved and expected results, as described and requested that the procedures be performed. The nature of the operation was identified as revision of nasal scar, excision right flank lipoma, all associated/indicated procedures, risks of bleeding, infection, drainage to surrounding structures and recurrence of lipoma. In February 2009 a VA examination addressed whether the Veteran had suffered harm and disability by a delay in the diagnosis of a right renal carcinoma by the VA. The examiner noted that the Veteran had a right flank lipoma removed in March 2005. The Veteran had been complaining of right flank pain and because he had large lipoma, which had become sore and bothersome, the caregivers suggested excision of the lipoma and a CT of the abdomen was not done at that time. The examiner opined that failure to do a CT examination of the abdomen at that time did not indicate VA's carelessness, negligence, lack of skill or error in judgment or fault in furnishing care, treatment, or examination to this Veteran. The examiner noted that caregiver's approach that it was the lipoma which bothered the Veteran and caused soreness in the right side was reasonable and logical under the circumstances. The examiner opined that in March 2005, the care in removing the rather large lipoma, which certainly could have been the cause of the Veteran's stress, was appropriate and did not present an indication at that time for a CT of the abdomen. The February 2009 examiner also opined that the medical records during the past 4 years do not indicate any evidence of metastatic disease coming from the right kidney and that whatever delay occurred in 2005 has not adversely affected the outcome of the treatment for renal cell carcinoma. The examiner opined that the Veteran therefore did not suffer any additional disability which might be related to any lack of proper care in 2005. In December 2009 an opinion was sought from an examiner as to whether or not the right flank lipoma excision in 2005 and resultant pain and scarring were the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault in furnishing care, treatment or examination by the VA facility. The examiner reviewed the claim file record, including the Veteran's statements as to his condition. The examiner noted that the Veteran was seen in March 2005 complaining of pain in his right flank area and was found to have a large lipoma. The operative wound healed well. The examiner noted the Veteran's photographs of the right flank clearly show an indented surgical incision. The examiner opined that it was not at least as likely as not that the effects of the Veteran's lipoma excision were caused by carelessness, negligence, lack of proper skill or error in judgment or similar instance of fault in furnishing care, treatment or examination but the VA facility in Leavenworth, Kansas. The examiner explained that the Veteran was seen in March 2005 for a large lipomatous mass in his right flank area, it was reasonable for his attending physicians to remove this lipoma because the Veteran complained that it was causing soreness. A tumor of that size, surgically operated, inevitably leaves an indented area and scar, which the Veteran certainly has. The examiner noted that the Veteran's complaints of pain and discomfort due to the scar are not unusual due to scar tissue underneath which inevitably forms after removal of such a large tumor. The examiner found the surgical result to be satisfactory, and the pain and discomfort were due to a reasonably unforeseeable event. (The examiner's use of "unforeseeable" is a typing error, and inconsistent with the rest of the opinion which holds that the Veteran's residual pain and discomfort were unavoidable.) The examiner noted that the issue of disfigurement also falls under the same unavoidable results of the removal of such a large tumor. Although the Board is sympathetic to the Veteran's argument that had more testing been done in March 2005, that the lipoma excision surgery and resulting indented painful scar, would have been avoided, the Veteran is not competent to provide an opinion as to whether the VA failed to exercise the degree of care that would be expected of a reasonable health care provider, as this opinion requires medical knowledge or training which the Veteran does not have. The Veteran reported that the surgery was a lot more extensive than he had originally thought and that he has had a large indented painful scar with adhesion since the surgery. The Veteran is competent to report symptomatology that he experiences, such as pain, and the Board finds the Veteran's reports of pain and discomfort to be credible. Layno v. Brown, 6 Vet. App. 465 (1994). Credible reports of residuals of surgery, pain and discomfort, however, do not establish that the residuals were due to carelessness or negligence in VA treatment. Rather, the competent medical opinion evidence of record includes findings that the March 2005 caregiver's course of action, to remove the large lipoma in response to the Veteran's complaints of right side pain and not to do any further examination of the abdomen, was reasonable based upon the circumstances. The medical evidence of record also shows that the residuals of the surgery, scarring and adhesion, were a foreseeable result of the excision of such a large lipoma. The Veteran was informed of the potential for scarring prior to surgery, and consented to the surgery. The medical evidence is against the claim for residuals of lipoma excision under 38 U.S.C.A. § 1151. As to the claim under 38 U.S.C.A. § 1151 for renal cell carcinoma, the Veteran has stated that he is not seeking compensation for kidney cancer, or removal of the kidney or progression of kidney cancer. Even if he was, the medical evidence of record, specifically the February 2009 opinion, demonstrates that as there is no evidence of metastatic disease coming from the right kidney, there is no additional disability as there is no renal cell carcinoma. To some extent, the Veteran appears to be raising an argument couched in equity. The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Accordingly, the Board must, and has, decided this case based on the application of the law to the pertinent facts. See Owings v. Brown, 8 Vet. App. 17 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171 (1992) [noting that the Court must interpret the law as it exists, and cannot extend benefits out of sympathy for a particular claimant]. There is no evidence showing an additional disability resulting from VA treatment and compensation under 38 U.S.C.A. § 1151, and residuals of lipoma excision, to include pain, scarring and discomfort, are not warranted. The preponderance of the evidence is against the claim and there is no doubt to be resolved. ORDER Compensation under 38 U.S.C.A. § 1151 for additional disability claimed as a result of VA treatment is denied. ____________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs