Citation Nr: 1327640 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 09-25 469 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in St. Paul, Minnesota THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for colitis and colon cancer. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from March 1971 to March 1974. He died in February 2011. The appellant has been recognized as the Veteran's spouse at the time of his death. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied entitlement to compensation under 38 U.S.C.A. § 1151 for colitis and colon cancer. The Veteran appealed the decision to the Board but died prior to a Board decision of his claim. In May 2011, the appellant requested that she be substituted into the Veteran's claim pursuant to the Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat 4145, 4151, (2008) (codified at 38 U.S.C.A. § 5121A). In a February 2012 letter to the appellant, the RO accepted the appellant's request to act as a substitute on behalf of the Veteran for the appeal that was pending at the time of his death. The Board remanded this matter in August 2012 and May 2013 for additional medical inquiry. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the claim on appeal. A review of the documents in the electronic file reveals that they are either are duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. In April 2011, the appellant filed a VA Form 21-534 (Application for Dependency and Indemnity Compensation (DIC), Death Pension and Accrued Benefits by a Surviving Spouse). Issues subject to this claim have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's colitis and colon cancer did not result from hospital care, medical or surgical treatment, or examination furnished by VA. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C.A. § 1151 for colitis and colon cancer have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Substitution As noted above, in May 2011, the appellant requested that she be substituted into the Veteran's claim for service connection under 38 U.S.C.A. § 1151. The Board notes that the Director, Compensation and Pension Service, issued a Fast Letter that provided guidance on processing claims involving substitution of parties, in August 2010. See Fast Letter 10-30. The letter noted that unlike prior accrued benefits claims, the record is not closed on the date of death of the original claimant, but remains open for the submission and development of any pertinent additional evidence. The letter provided guidance on specific procedures to follow noting that any eligible survivor submitting a claim for accrued benefits will automatically be considered as requesting to substitute and may be able to submit additional evidence in support of the claim. The Fast Letter indicates that this type of a claim differs from an accrued benefits claim, in part, as evidence can be added to the record. In most accrued benefits cases, a decision is based on the evidence that is on file at the time of the Veteran's death. In these cases, involving substitution, additional evidence can be added to the file. VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), 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. 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). In the case at hand, the record reflects that the Veteran, and the appellant, was provided all required notice in a letter mailed in March 2008 prior to the adjudication of the claim in the September 2008 rating decision on appeal. Regarding the duty to assist, the Veteran's service treatment records (STRs) are associated with his claims files, and pertinent, available post-service treatment records (including VA and private records) have been secured. Furthermore, VA has obtained VA compensation examination reports and opinions into to the claim for service connection under 38 U.S.C.A. § 1151. Neither the Veteran nor the appellant identified any other pertinent evidence that remains outstanding. Accordingly, the Board concludes that VA has complied with its duty to assist the Veteran and, by substitution, the appellant. Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore address the merits of the claim. (Continued on next page) Service Connection under 38 U.S.C.A. § 1151 The Veteran asserted entitlement to compensation for colon-related disorders pursuant to 38 U.S.C.A. § 1151. Laws and Regulations The appropriate legal standard for claims for compensation under 38 U.S.C.A. § 1151 filed on and after October 1, 1997, as in this case, provides that compensation 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 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. 38 U.S.C.A. § 1151 (West 2002). From the plain language of this statute, it is clear that, to establish entitlement to benefits under 38 U.S.C.A. § 1151, all three of the following factors must be shown: (1) disability/additional disability, (2) VA hospitalization, treatment, surgery, examination, or training was the cause of such disability, and (3) there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from an unforeseen event. Effective September 2, 2004, 38 C.F.R. § 3.361 relating to section 1151 claims was promulgated for claims filed on or after October 1, 1997, such as this claim. See 69 Fed. Reg. 46,426 (2004) (codified as amended at 38 C.F.R. § 3.361 (2011)). 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. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. Additional disability or death caused by a Veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(1). 38 C.F.R. § 3.361(d) states that the proximate cause of disability or death is the action or event that directly caused the disability or death, 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 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, medical or surgical treatment, or examination caused the Veteran's additional disability or death (as explained in paragraph (c) of this section); 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. In Alemany v. Brown, 9 Vet. App. 518 (1996), the United States Court of Appeals for Veterans Claims (Court) found that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted into the record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that 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). Factual Background and Analysis In August 2007, the Veteran had inpatient treatment at the VA Medical Center (VAMC) in Cheyenne, Wyoming. He was admitted due to abdominal pain. In subsequent VA treatment in September 2007, colonoscopy showed evidence of colitis and a mass. The Veteran underwent a biopsy of colon tissue and the mass in the colon in September 2007. The pathologist commented that the colitis had "features most consistent with antibiotic associated disease." In October 2007, the pathologist found that the tissues from two areas showed acute and chronic colitis, and that the mass was a malignant lesion, intramucosal adenocarcinoma. Later in October 2007, a section of the Veteran's colon was surgically removed (a procedure for which the Veteran signed an October 2007 consent form of record). The Veteran's death certificate lists metastatic colon cancer as an immediate cause of his February 2011 death. The claim to service connection under 38 U.S.C.A. § 1151 rests of two theories. The first theory, asserted by the Veteran in his original 38 U.S.C.A. § 1151 claim in January 2008, is that antibiotic medications prescribed during the August 2007 hospitalization amounted to faulty care because it caused him to develop the colitis and the colon cancer. The second theory, asserted by the Veteran and the appellant, is that VA treatment was faulty due in part to a delay in treatment of his cancer. In a February 2008 statement, the Veteran asserted that delay in treatment of his colon cancer, from initial treatment in August 2007 to surgery in October 2007, was faulty and that surgery would have been unnecessary had VA "not waited so long to treat the cancer." In June 2012, the appellant's representative argued that, had VA acted "quicker" in treating the Veteran's cancer, "his cancer may not have been so serious ... requiring the removal of his colon." Lastly, the Board notes a September 2007 statement of record from the Veteran requesting a change in treating physician, which states in part that, "I now have to have colon surgery that could have been avoided months ago." With regard to the first theory of entitlement: the September 2007 biopsy report provides evidence of a possible connection between antibiotics and the Veteran's colitis. That report and other medical records do not address, however, whether colitis was attributable to fault in VA medical care, or whether the colitis was not reasonably foreseeable. The assembled medical records did not address whether the colon cancer was caused by VA medical care, whether it was attributable to fault in VA medical care, or whether it was not reasonably foreseeable. As such, the Board remanded this matter in August 2012. In response, an assessment of the evidence was conducted by a VA physician in September 2012. The physician's report and opinion thoroughly addressed the Veteran's assertions under this theory of entitlement. The physician began his report by indicating a review of the claims file. In his report, he detailed a familiarity with the Veteran's medical history. The examiner detailed the criteria to be considered with 38 U.S.C.A. § 1151 claims. The examiner also summarized the Veteran's primary assertion that his colitis and colon cancer was a result of faulty VA treatment including antibiotic treatment. In response to the assertion, the examiner stated that the Veteran's colitis and colon cancer were not a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in treating the Veteran. The examiner stated that the Veteran was initially admitted with a two-month history of stomach pain and weight loss. The examiner indicated that initial assessment of the Veteran noted a fever. Based on these facts, the examiner indicated that it was correct treatment to prescribe the Veteran with antibiotics. The examiner indicated that a subsequent CT scan indicated a possible tumor, which led to the colonoscopy which confirmed the existence of inflammation and a tumor. The examiner stated that it was possible that either the tumor itself, or the VA-prescribed antibiotics, caused the inflammation. Nevertheless, the examiner indicated that, given the Veteran's medical situation upon his admission into the hospital, "it was the standard of care to give the antibiotics." In addressing whether the inflammation/colitis was "an event not reasonably foreseeable," the examiner stated "[t]his was not a foreseeable event." However, the report itself contradicts that conclusory statement. For example, in discussing the potential relationship between VA-prescribed antibiotic treatment and inflammation/colitis, the examiner noted the inflammation as a "known side effect of the antibiotics." The examiner further stated that their administration was nevertheless in accordance with the standard of care given the Veteran's symptoms. The September 2012 examiner also expressly rejected the assertion that colitis, perhaps related to ingestion of antibiotics, caused the colon cancer. The examiner stated that the Veteran presented with a history of two months of symptoms indicating a colon cancer that "had been growing for some time prior." The examiner further stated, "there is no relationship between the colon cancer and the colonoscopy, antibiotics or any other VA treatment." Finally, in addressing whether colon cancer was "an event not reasonably foreseeable," the examiner reiterated that the cancer preceded VA treatment, perhaps by "1-3 years or even longer," and that the symptoms began 2 months prior to the initial VA treatment in 2007. The condition precedent to entitlement under 38 U.S.C.A. § 1151, based on an event not being reasonably foreseeable, is lacking here - the cancer preceded the Veteran's initial VA treatment. With regard to the second theory of entitlement: in the September 2012 VA report, the examiner did not address the lay assertion that delay in treatment amounted to faulty care because it led to severe colon cancer that necessitated resection (and which ultimately caused death). As such, the Board remanded this matter in May 2013. In response, the VA examiner provided an addendum opinion into the record in June 2013. The examiner again indicated a review of the claims file. The examiner stated that he issued the September 2012 report addressing the Veteran's claim. The examiner expressed an understanding of the inquiry sought in the Board's May 2013 remand - i.e., regarding whether a delay in treatment between August and October 2007 amounted to faulty VA care that led to severe colon cancer. And the examiner provided a clear opinion, stating that the Veteran's "colon cancer had been present for several years prior to [its] discovery" in 2007. Moreover, the examiner stated that the 3-month period of time used to arrive at diagnosis was not "unusual" and that VA providers followed "an appropriate work up" in response to the Veteran's complaints. Based on this background, the examiner found that the severity of the Veteran's colon cancer could not be "attributed to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA." See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). Thus, in the September 2012 and June 2013 opinions, the VA examiner stated that the Veteran's inflammation/colitis may have related to the antibiotic treatment he received in August 2007, as was theorized in the September 2007 pathology report. Nevertheless, the examiner concluded that the treatment was not faulty, and was in accordance with the standard of care given the Veteran's symptoms, even though colon inflammation is a known side effect of antibiotic treatment. Further, the examiner found no relationship between VA treatment and cancer as the cancer predated the initial August 2007 treatment, perhaps for a period exceeding one or more years. And the examiner expressly found no relationship between the severity of the cancer in October 2007 - at the time of resection - and the length of time VA treated the Veteran from the time of admission to the time of resection. In sum, the examiner stated that VA care of the Veteran's colon disorders in mid to late 2007 was not faulty. The VA examiner's September 2012 and June 2013 medical opinions are not challenged in the record by another medical professional. Nevertheless, the Board has considered the lay opinions of record from the Veteran and the appellant, which assert that faulty VA treatment resulted in the cancer that ultimately led to the Veteran's death. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, on the question before the Board, the lay opinions of record are of limited probative value. The intestinal disabilities at issue involve internal pathologies that are beyond the capacity for lay observation. Their etiologies and their development cannot be determined through observation or by sensation such as seeing or feeling. The Veteran was simply not competent to render a medical opinion regarding the way in which the disorders in his intestine developed. He did not have the training and expertise to provide medical evidence connecting VA treatment to colitis or to cancer. Nor does the appellant. Neither can competently state that what VA did in the summer and fall of 2007 either caused his disorders, or expedited the cancer which led to death. On these essentially medical questions, the medical evidence is of more probative value. And the medical evidence clearly indicates that, though the Veteran may have experienced inflammation due to antibiotic treatment, neither that disorder, nor the colon cancer, was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital treatment, or that either was an event not reasonably foreseeable. As such, the Board finds that the preponderance of the evidence is against the claim of entitlement to compensation under 38 U.S.C.A. § 1151 for colitis and colon cancer. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Compensation under 38 U.S.C.A. § 1151 for colitis and colon cancer is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs