Citation Nr: 1642464 Decision Date: 11/03/16 Archive Date: 11/18/16 DOCKET NO. 13-15 326 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for a neck and esophageal disability resulting from medical treatment furnished at a VA Medical Center in December 1997. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his son ATTORNEY FOR THE BOARD Arif Syed, Counsel INTRODUCTION The Veteran had active duty service in the United States Army from April 1953 to April 1955. This matter comes from the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In February 2015, a videoconference hearing was held before the undersigned Veterans Law Judge (VLJ). The transcript of that hearing is of record. The Board notes that the Veteran's substantive appeal for this claim was received in May 2013. Subsequent to the filing of the substantive appeal, the Veteran submitted a statement from his VA psychiatrist dated January 2016 that documented his gastrointestinal and psychiatric symptoms as well as a VA gastroenterology outpatient record dated February 2016. A supplemental statement of the case (SSOC) has not been issued considering this newly submitted evidence. Also, the Veteran has not submitted a waiver of this evidence. However, because the Veteran's substantive appeal was received after February 2, 2013, a waiver of the additional evidence is not required. See § 501, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial RO review of evidence submitted to the RO or to the Board at the time of or subsequent to the submission of the substantive appeal, unless the claimant or claimant's representative requests in writing that the RO initially review such evidence). In April 2015, the Board remanded the Veteran's claim. The Veteran's VA claims folder has been returned to the Board for further appellate proceedings. The Board has reviewed the record maintained in the Veteran's Virtual VA paperless claims processing system folder. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). In correspondence received by VA in February 2016, the Veteran attempted to raise the issue of entitlement to service connection for an anxiety disorder pursuant to 38 U.S.C.A. § 1151. This is a wholly separate claim from that on appeal, which deals with a neck disability. Effective on March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; such now requires that claims be made on specific claim form prescribed by the Secretary, and available online or at the local Regional Office. The Veteran is advised that if he wishes to open a claim, he do so using the prescribed form either in person or online (https://www.ebenefits.va.gov/ebenefits/). FINDING OF FACT Additional treatment for a neck or esophageal disability as a result of VA treatment in December 1997 was not caused by the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care or was due to an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation for additional neck and esophageal disability due to VA treatment in December 1997 under the provisions of 38 U.S.C.A. § 1151 have not been met. 38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. § 3.361 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks entitlement to compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for a neck and esophageal disability resulting from medical treatment furnished at a VA Medical Center in December 1997. In the interest of clarity, the Board will discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. Stegall concerns As alluded to above, in April 2015, the Board remanded this claim and ordered the agency of original jurisdiction (AOJ) to obtain outstanding VA treatment records as well as obtain a medical opinion as to whether the Veteran has any additional disability in his esophagus or elsewhere that is the result of the surgical procedure and post-surgical care that the Veteran underwent in December 1997. The Veteran's claim was to then be readjudicated. Pursuant to the Board's remand instructions, outstanding VA treatment records were obtained and associated with the claims folder, and the above-requested medical opinion was also obtained and associated with the claims folder. The Veteran's § 1151 claim was thereafter readjudicated in a SSOC dated December 2015. Accordingly, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. Duties to Notify and Assist VA has a duty 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. This notice must specifically inform the claimant 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. See 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015). In a letter mailed to the Veteran in June 2010, prior to the initial adjudication of his claim, VA satisfied this duty. VA also has a duty to assist a claimant in the development of his claim. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim. There is no reasonable possibility that further assistance would aid in substantiating the claim. The pertinent evidence of record includes statements from the Veteran as well as VA treatment records. As noted above, the Veteran also was afforded a hearing before the undersigned VLJ during which he presented oral argument in support of his § 1151 claim. Here, during the February 2015 Board hearing, the VLJ clarified the issue on appeal (compensation pursuant to § 1151 for a neck and esophageal disability); clarified the concept of § 1151 claims; identified potential evidentiary defects which included evidence of additional neck or esophageal disability resulting from the Veteran's VA treatment in December 1997; clarified the type of evidence that would support the Veteran's claim; and inquired as to the existence of potential outstanding records. Thus, the actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing set forth in 38 C.F.R. § 3.103. Additionally, the Veteran was afforded a VA examination in December 2015 as to whether he had additional neck or esophageal disability resulting from his VA treatment in December 1997, and if so, whether such disability is a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing medical care or was an event not reasonably foreseeable. The VA opinion report reflects that the examiner reviewed the Veteran's past medical history, reviewed the Veteran's electronic claims folder, provided an examination of the Veteran, and provided an opinion which is supported by a rationale. The Board concludes that the VA examination report is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2015); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. The Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2015). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has retained the services of an accredited representative. He testified before the undersigned VLJ in February 2015. Compensation under § 1151 The Veteran contends that he is entitled to compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for a neck and esophageal disability resulting from medical treatment, specifically an esophagoscopy and cricopharyngeal myotomy, furnished at a VA Medical Center in Cincinnati, Ohio in December 1997. Effective October 1, 1997, the United States Congress amended 38 U.S.C.A. § 1151. See § 422(a) of PL 104-204. The purpose of the amendment was, in effect, to overrule the United States Supreme Court decision in Brown v. Gardner, 115 S. Ct. 552 (1994), which held that no showing of negligence was necessary for recovery under § 1151. In pertinent part, § 1151, as amended, reads as follows: 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 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. See 38 U.S.C.A. § 1151 (2015). From the plain language of the statute, it is clear that to establish entitlement to § 1151 benefits, all three of the following factors must be shown: (1) Disability/additional disability, (2) that VA hospitalization, treatment, surgery, examination, or training was the cause of such disability, and (3) that 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 event not reasonably foreseeable. For all claims received after October 1, 1997, 38 C.F.R. § 3.361 is the regulation that implements 38 U.S.C.A. § 1151. To determine whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based to the Veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each body part involved or system separately. See 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability or death. Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability or died does not establish causation. See 38 C.F.R. § 3.361(c)(1). 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, the Veteran must show that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability or death, and VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or 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. 38 C.F.R. § 3.361(d)(1)(ii). Consent may be express (given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b). Id. Whether the proximate cause of a Veteran's additional disability or death was an event not reasonably foreseeable is determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d)(2). 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. Id. 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. Id. VA medical records dated in December 1997 show that the Veteran signed a statement indicating that he understood the nature of the operation or procedure to be esophagoscopy and possible myotomy. He stated that the nature and purpose of the operation or procedure, the possible alternative methods of treatment, the risks involved, and the possibility of complications had been fully explained to him. He also acknowledged that no guarantees were made concerning the results of the operation or procedure. It was specifically noted that the risks included injury to the esophagus, pain, and bleeding. The Veteran requested the performance of the operation, administration of anesthesia, and of such additional operations or procedures as were found to be necessary or desirable in the judgment of the professional staff during the course of the operation. He did not list any exceptions to surgery or anesthesia. The Veteran underwent the planned cricopharyngeal myotomy and esophagoscopy on December 16, 1997. The esophagoscopy revealed no lesions or masses, but the cricopharyngeal myotomy was complicated by a small perforation of the posterior wall of the esophagus. The perforation was closed using interrupted sutures, and the Veteran was returned to the floor with instructions to take nothing by mouth. He had a Hemovac drain, which was left in place overnight. He was given methylene blue to swallow the following morning, and the Hemovac drain was kept to wall suction for approximately two hours after the swallow and revealed drainage of methylene blue into the Hemovac. The Hemovac drain was then discontinued, and the Veteran began an oral diet. He was also kept on Clindamycin during that time and showed no signs of fever or other sequelae. He complained of mild chest pain, and a chest x-ray revealed some bi-basilar atelectasis, but there were no other lesions. After three hours of starting the oral diet, the Veteran was found to have some increased swelling in his left neck along with crepitus over the left neck and anterior left clavicle. An esophageal perforation was then suspected, and a Penrose drain was placed though the old drain site. It was once again ordered that he take nothing orally. The Veteran had a feeding tube placed fluoroscopically the following day. He was started on tube feeds and observed for the next five days. He remained afebrile during his entire hospital course, and the pain, swelling, and crepitus in the neck steadily decreased. On the sixth postoperative day, the Veteran underwent a barium swallow to evaluate the esophageal perforation, and a persistent posterior leak was noted. The decision was subsequently made to continue his non-oral status and the tube feeds. It was later determined that he could return home for the holidays because he appeared clinically stable, was afebrile, and was improving in terms of neck swelling and crepitus. He was discharged and instructed to maintain taking nothing by mouth. His family was also advised about caring for the tube feedings, and a home health care nurse would evaluate him twice a day. The Veteran was also scheduled a follow-up appointment the next week with a barium swallow. In September 1998, a VA examiner noted that the healing process from the December 1997 procedure took three to four weeks when it would have taken only two to three days without such a complication. The VA examiner commented that this temporary period of disability was the result of accidental perforation of the esophagus with a nursing staff error in feeding the Veteran postoperatively. He opined there was no long-term disability as a result of the incident and observed that the Veteran was swallowing better postoperatively than preoperatively. A VA video fluoroscopic swallowing examination was conducted in December 2003. The examination report revealed impressions of penetration with thin barium and no aspiration of thin or thickened solutions as well as no penetration of thickened barium. Further, semi-solid and solid food substances were swallowed without difficulty, and there was normal esophageal peristalsis and no gross abnormalities of the esophageal mucosa. On VA examination in November 2003, the VA examiner noted that the Veteran had a normal esophagogastroduodenoscopy in October 2000 and a normal swallowing study in April 2002, with the exception of large lower cervical spine spurs. A VA CT of the neck dated May 2004 revealed impressions of no evidence of mass; large anterior flowing osteophytes with the largest at the C5-6 and C6-7 levels; and ill-defined low-attenuation lesion within the left lobe of the thyroid measuring approximately 1 cm. In March 2006, the Veteran's claims folder was reviewed by a VA examiner and he opined that there was no documentable additional disability in the esophagus or neck as a result of the surgical procedure in December 1997 or post-surgical care. VA treatment records dated after the March 2006 VA opinion indicate that the Veteran now has difficulty swallowing food and liquids. Specifically, a May 2010 treatment record noted the Veteran's report that his swallowing was still impaired following the December 1997 procedure and that he limited his diet to soft foods and that he rarely tries to chew and swallow any solid foods. He also complained of throat pain while at rest as well as "spasm." He was assessed with a longstanding history of dysphagia but was able to maintain his weight. Also, a July 2010 echogram of the thyroid revealed an impression of multinodular goiter with no nodule measuring more than 1.5 cm. An MRI of the cervical spine dated December 2010 revealed impressions of upper cervical spine congenital abnormalities with occipitalization of C1 and partial fusion of C2-C3 as well as moderate multilevel degenerative disc changes most conspicuous at C3-C4 where there was moderate to severe central canal stenosis and mild cord compression asymmetric to the left associated with severe left foramina narrowing. A May 2011 endoscopy report documented mildly impaired oropharyngeal swallowing function, and the Veteran was reassured that all evidence indicated that he was able to swallow most foods safely. Another endoscopy report dated September 2011 revealed an impression of Schatzki ring, although this was unlikely related to the Veteran's dysphagia. An August 2012 treatment record notes that the Veteran reported being unable to swallow water 5 days previously. Moreover, in May 2013, the Veteran underwent a laryngoscopy which essentially revealed normal findings with the exception of osteophytes in the nasopharyngeal mucosa. Also, in January 2016, the Veteran's treating VA psychiatrist submitted a statement indicating that the Veteran can only eat baby food, constantly has trouble swallowing, has to crush his medication into a powder, and has had a precipitous decline in his quality of life to include fear of choking to death. A February 2016 treatment record noted the Veteran's 20 year history of dysphagia and that he blends all of his food prior to eating. However, his weight remained stable, and the treating physician reported that the Veteran's swallowing issues are more anxiety related than anatomic or mechanic. The treating physician also noted that the Veteran does not need any further gastrointestinal testing or treatment. Additionally, at his February 2015 hearing, the Veteran reported that his symptoms of dysphagia have greatly worsened. He also asserted that he experiences gout due to the food restrictions resulting from the December 1997 VA surgery. Having reviewed the record, the Board finds that entitlement to benefits under the provisions of 38 U.S.C.A. § 1151 is not warranted. In this regard, the Veteran was provided an updated VA examination in December 2015. Pertinently, the examiner documented the Veteran's December 1997 procedure as well as the Veteran's current complaints of difficulty swallowing pureed food and epigastric distress as well as his bouts of gout. After examination of the Veteran and consideration of his medical history, the VA examiner diagnosed the Veteran with chronic dysphagia status post cricopharyngeal myotomy from 1997 and concluded that this disability is not the result of the December 1997 surgical procedure. The VA examiner's rationale for her conclusion was based on her finding that the chronic dysphagia started prior to the procedure, and follow-up notes documented some improvement of the dysphagia after the surgery. Further, esophageal perforation that was sustained during the procedure was small and subsequently resolved. Moreover, dysphagia is a potential complication of the procedure and is not evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care or was an event not reasonably foreseeable. Also, with regard to the Veteran's gout, the examiner opined that this disability is not caused by or related to cricopharyngeal myotomy in that there is no anatomic association due to gout being an inflammatory condition of the joints. The December 2015 VA examination was based upon thorough examination of the Veteran and thoughtful analysis of his medical history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. The Veteran has not submitted a medical opinion to contradict the December 2015 VA examiner's opinion. As was explained in the VCAA section above, the Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim. He has not done so. See 38 U.S.C.A. § 5107(a) (West 2014) [it is the claimant's responsibility to support a claim for VA benefits]. In relevant part, 38 U.S.C.A. 1154(a) (West 2014) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board observes that the Veteran and his son have presented statements regarding the severity of the Veteran's dysphagia and gout due to the December 1997 procedure. The Board notes that the Veteran and his son, while entirely competent to report his symptoms both current and past (including difficulty swallowing), have presented no clinical evidence that the increased severity of his dysphagia or other neck/esophageal disability was caused by the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care or was due to an event not reasonably foreseeable from the December 1997 procedure. The Board finds that the Veteran and his son as lay people are not competent to base such a determination. Such opinion requires specific medical training in the field of ear, nose, and throat and is beyond the competency of the Veteran or any other lay person. In the absence of evidence indicating that the Veteran or his son have the medical training in the field of ear, nose, and throat to render medical opinions, the Board must find that their contention with regard to the Veteran's additional disability with respect to his gout, dysphagia or other neck/esophageal disability was caused by the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care or was due to an event not reasonably foreseeable from the December 1997 procedure to be of minimal probative value and outweighed by the objective evidence of record which is absent a finding of such. See also 38 C.F.R. § 3.159(a)(1) (2015) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, the statements offered by the Veteran and his son in support of his own claim are not competent evidence that his additional neck/esophageal disability to include dysphagia or gout was caused by the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care or was due to an event not reasonably foreseeable. In sum, the competent and probative evidence of record shows that the Veteran had dysphagia and gout following his cricopharyngeal myotomy and esophagoscopy that he underwent at the VA Medical Center in Cincinnati, Ohio in December 1997. However, the December 2015 VA medical opinion clearly indicates that such additional disabilities were not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable with respect to the December 1997 procedure. To the extent that the Veteran contends that he underwent the December 1997 procedure without informed consent, as discussed above, the evidence shows that the Veteran provided such informed consent to VA prior to undergoing the procedure. See the December 1997 VA operation report. As such, to the extent that the Veteran asserts that he did not provide informed consent, the Board finds his contentions are not credible in light of the evidence contained in contemporaneous treatment records indicating that the Veteran was informed of the risks involved with the surgery and chose to have the procedure. There is no credible evidence to suggest that the treatment the Veteran received was performed without the Veteran's informed consent. In this case, the competent and probative evidence establishes that the Veteran's current neck/esophageal disability to include dysphagia is not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable from the cricopharyngeal myotomy and esophagoscopy in December 1997 at the VA Medical Center in Cincinnati. 38 U.S.C.A. § 1151 (West 2014). In sum, the Board finds that the preponderance of the evidence is against the claim. There is no doubt to be resolved. Consequently, the benefit sought on appeal is denied. ORDER Entitlement to compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for a neck and esophageal disability resulting from medical treatment furnished at a VA Medical Center in December 1997 is denied. ____________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs